
^ J%HTICll£J£DUC^ION 



The Society for Political Education. 

{ORGANIZED 1881.) 

OBJECTS. — The Society was organized by citizens who believe that 
the success of our government depends on the active political influence of 
educated intelligence, and that parties are means, not ends. It is entirely 
non-partisan in its organization, and is not to be used for any other purpose 
than the awakening of an intelligent interest in government methods and 
purposes tending to restrain the abuse of parties and to promote party 
morality. 

Among its organizers are numbered Democrats, Republicans, and Inde- 
pendents, who differ among themselves as to which party is best fitted to 
conduct the government, but who are in the main agreed as to the following 
propositions : 
The rig-ht of each citizen to his fr^e and all pap^ money must be convertible 

•ighl to the highest 
unhindered by public 



voice and vo 

Office-hold 
suffrage. 

The office 
the man the ( 

Public ser 
should depet 
behavior. 

The crime: 
must be relet 

Local issuf 
national parti 

Coins mad« 
possess thei 
markets of tt 

Sound curr 



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LIBRARY OF CONGRESS. 



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UNITED STATES OF AMERICA. 



It to the freest scope, 
, except for govern- 

st be restricted from 

Wic money nor the 
be used to subsidize 

wholesome and ac- 

y machine control, is 

of popular institu- 



, however, required 



to endorse the above. 

METHODS. — The Society proposes to cany out its objects by submit- 
ing from time to time to its members lists of boolcs which it regards as de- 
sirable reading on current political and economic questions ; by selecting 
annual courses of reading for its members ; by supplying the books so se- 
lected at the smallest possible advance beyond actual cost ; by furnishing 
and circulating, at a low price and in cheap form, sound economic and po- 
litical literature in maintenance and illustration of the principles above an- 
nounced as constituting the basis of its organization ; and by assisting in the 
formation of reading and corresponding circles and clubs for discussing 
social, political, and economic questions. 

ORGANIZATION. — The Society is to be managed by an Executive 
Committee of twenty-five persons, selected from different sections of the 
United States. 

I 



SOCIETY FOR POLITICAL EDUCATION. 

MEMBERSHIP. — Active Members are such persons as will pledge 
them«;elve.s to read the Constitution of the United States, and that of the 
State in which they reside ; who will agree to read at least one of the 
annual courses as included in the Library of Political Education, and who 
will pay an annual fee of 50 cents (which may be forwarded in postage- 
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Society during the year. 

Parents, guardians, or teachers will be considered as having fulfilled the 
above obligations if they make their children, wards, or pupils follow the 
prescribed course of reading. 

In order to make the membership widespread, and especially to enable 
students in the public schools and colleges to take part in the Society, the 
annual fee for Active Members has been made so small that the proceeds 
are inadequate to carry out the objects of the Society. To provide for the 
resulting deficiency, the Executive Committee has established a special 
membership for such public-spirited persons as wish to promote political and 
economic education, as follows : — 

Any^jerson may become a CO-OPERATING Member on the annual 
payment of $5.00 or more, which shall entitle such member to receive the 
tracts and lists published by the Society, and to nominate two Fellowship 
Members. To persons so nominated the Secretary will send the series of 
Economic Tracts for 1880-S1, stating that they are presented through the 
courtesy of such Co-operating Member. 

SECOND YEAR'S WORK, 1882.— During the past year the Society 
has received fees from some 1,400 Members, with subscriptions from 170 Co- 
operating Members. The number of Auxiliary Societies has also been 
largely increased. 

PUBLICATIONS. — In order to enable persons in places where no 
public library is accessible, to procure, at a reduced rate, the volumes rec- 
ommended by the Executive Committee for the annual courses of reading, 
the Committee has arranged for special editions of these in uniform binding, 
with the imprint of the Society upon the cover, which will be issued in 
annual series under the general title of the Library of Political Education, 
and can be supplied only in sets. 

Members who join for the year 1883 may read either the first or the sec- 
ond series of the Libraty, but the Committee recommends them to begin 
with the first series, unless they have already read the books comprised in it. 



CONSTITUTIONAL HISTORY 



POLITICAL DEVELOPMENT 



OF THE 



UNITED STATES. 



SIMON ^TEKNE, 

OP THE NEW TORK BAB. 




FOURTH REVISED EDITION. 



CASSELL, PETTEE, GALPIN & CO., 

New York, London and Paris. 






Copyright, 

1883, 

Bt O. M. DUNHAM. 



PRESS OF J. J. LITTLE t CO., 
MOS. 10 TO 20 ASTOR PLACE, NEW YORIU 



PREFACE. 



The request addressed to me by tlie publishers 
to write for non-professional readers a book on the 
Constitution of the United States led me to inquire 
whether, in the multiplicity of works on this, as on 
almost every other conceivable subject touching 
large popular interests, there is any room to say 
something novel, or put into a new form the old 
matter which has been said and written over and 
over again by abler tongues and pens than mine. 
It occurred to me that a sketch of the Constitution 
of the United States as it stands in text, and as it is 
interpreted by the Supreme Court, accompanied by 
a history of the political controversies which re- 
sulted in the formation of and changes in that in- 
strument, together with the presentation of the 
actual situation of political parties and questions, 
which, in their turn, may produce constitutional 
changes, would, if given within a limited space, 
present such a view of the institutional condition 
of the United States as to justify this book to the 
student of political history. 

At no time in the history of the United States 
have its institutions awakened such widespread and 
friendly interest as at present. It is true that dur- 



IV PEEFACE. 

ing the great civil war, from 1861 to 1865, tlie 
news from tlie contending armies was read with 
greater avidity than that which is awakened by the 
items of a commercial, agricultural, and industrial 
character, which now in the main fill the columns 
of the press ; but a far greater proportion of the 
human family are more largely concerned in these 
very items than then were in our military contests, 
inasmuch as since that period the United States 
has become the largest contributor to the food 
supply of the world. 

The period of the history of our country begin- 
ning with the close of the war is a most interesting 
one to the student of political institutions. Euro- 
pean statesmen doubted, and many thoughtful 
Americans at times had misgivings, whether our 
institutions could bear the strain of the conditions 
in which at the close of the war the national gov- 
ernment was placed. Every war issue has been 
met and successfully disposed of. The ills of an 
improperly laid and collected revenue, a bad civil 
service, mischievous methods of taxation and cor- 
rupt municipal administration still exist, but not 
one of these evils, properly speaking, can be said to 
date from the war period, but the roots of them 
were planted many years before the slavery agita- 
tion was at its height. Nigh a million of men, who 
in the North and South were under arms at the 



PREFACE. V 

close of tlie war, were disbanded and absorbed 
again by the agricultural and industrial enterprises 
of the country, and no appreciable increase of crime 
or lawlessness was visible in the community. The 
government returned to a sound currency from a 
depreciated paper war currency, notwithstanding 
the fact that great masses believed the return to 
specie payment would be the ruin of individual 
enterprise. A large proportion of the debt created 
by the war has already been paid off; and the 
remainder, by the establishment of a financial 
credit second to none in the world, refunded at so 
low a rate of interest that the burden of the debt, 
taking into consideration the increase of population, 
is but a third of what it was at the close of the war. 
The revenue of the country is so far in excess of its 
financial needs that but for the ingenuity of politi- 
cians to devise jobs to absorb public funds, a bad 
civil service and governmental extravagance, a still 
greater reduction would have been made. As it is, 
the debt of the United States, although the most 
recent of the great governmental debts of the world, 
may still be the first to be paid off. 

All these evidences of elasticity of institutions, 
enabling us successfully to meet unlooked-for emer- 
gencies in our country's needs, have from time to 
time elicited the admiring expressions of publicists 
the world over, and caused them more closely to 



VI PEEFACE. 

study institutions wliicli, wliile they on tlie one 
hand secure individual freedom of action, seem not 
to be devoid of the power to produce such far- 
reaching results as are supposed to be the special 
advantages of the more paternal forms of gov- 
ernment. 

To attribute the whole of the prosperity of the 
people of the United States to its institutions would 
be puerile in the extreme. Any constitutional form 
of government securing freedom of action in deal- 
ing with its practically exhaustless resources, among 
which may be enumerated vast treasures of mineral 
wealth, fruitful soil, and beneficent climate, coupled 
with a geographical situation which almost wholly 
prevents foreign complications, would have made 
for the inhabitants of the vast domain known as 
the United States a home filled with comfort, lux- 
ury, and wealth, and have attracted seekers of fort- 
une from every quarter of the globe. 

That the institutions of the United States did, 
however, largely favor the growth of material wealth 
cannot be denied. Not to speak of other advantages 
afforded to individual enterprise, the entire absence 
of any inter-state custom-house from Maine to Flor- 
ida, and from the Atlantic to the Pacific, has given 
the inestimable and incalculable advantages of free 
trade in its most absolute form over a larger sur- 
face and among more varied conditions of an indus- 



PEEFACE. Vll 

trial and agricultural character than unimpeded 
exchanges exist elsewhere on the face of the globe. 
While it is true that in more recent years (since 
1846) European nations have let down the barriers 
of protection toward each other, by treaty and more 
liberal legislation, yet in the United States the 
practical advantages of the system of free trade 
commenced almost synchronously with the teach- 
ing of the doctrine by Adam Smith, in 1776. The 
errors of protection, which still govern the legisla- 
tion of the United States in its relations with foreign 
countries, and to a degree counterbalance in evil the 
benefits thus conferred, bring loss, but in the lim- 
ited ratio that foreign commerce bears to a nation's 
internal exchanges ; and as the ratio of foreign com- 
merce is at best not one to twenty of domestic in- 
terchange, the benefits conferred by the freedom of 
exchange within the United States must have been 
out of all proportion greater than the injury in- 
flicted by the protective system inaugurated in 
1861, which is, if the signs of the times do not mis- 
lead, fast crumbling away. 

That there is ample scope for the political re- 
former, and much material to work upon in the 
United States as elsewhere, and in some respects 
more than elsewhere, will in the following pages be 
frankly admitted. The methods of legislation are 
wofuUy primitive and defective, and the practice 



Vm PEEFACE. 

ofttimes corrupt. The existing system of repre- 
sentation is inharmonious and unphilosophical ; 
the tariff legislation a mass of injustice and incon- 
gruities, resulting in a collection of revenue at a 
most burdensome expense to the consumer. Munic- 
ipal goyernment is too easy a prey to jobbery and 
venality of every description. The civil service 
goes by favor rather than by merit. Political par- 
ties, although they divide upon numberless unim- 
portant issues, seldom upon fundamental principles 
of government, almost constantly unite in favoring 
monopolies in disregard of individual rights and in- 
terests, and in almost every attack upon the public 
purse, frequently vieing with each other in bidding 
for popular favor at the sacrifice of the more per- 
manent interests of the community. Yet these evils, 
mischievous as they are, are not -without remedy. 
The one crowning merit of American institutions 
lies in the fact that an earnest and persistent appeal 
to the good sense of the people has, since the for- 
mation of the Constitution, always evoked a spirit 
able to cope with even more formidable national 
vices. We have, therefore, strong reason to ex- 
pect that these lesser defects will be remedied by 
deliberately formulated constitutional changes ad- 
equate to extirpate them. 

SIMON STERNE. 
30 West 59th street, New York. 



CONTENTS. 



CHAPTER I. jAGE 
Constitution op the United States 1 

CHAPTER n. 
The Legislative Department 27 

CHAPTER in. 
The Executive Power 65 

CHAPTER IV. 
The Judicial Power 96 

CHAPTER V. 

The Post-Constitutional History op the United 
States 145 

CHAPTER VI. 

Current Questions Productive of Changes in the 
Constitution 233 

CHAPTER VII. 

The State Constitutions : The Changes Therein, 

and their Development 250 

ix 



^ 



CONSTITUTIONAL HISTOEY 



United States. 



CHAPTER I. 

CONSTITUTION OF TH!^ UNITED STATES. 

It -would far transcend the limits of a book 
intended for popular purposes, to enter into an 
elaborate investigation of all the causes wliicli 
contributed to the creation of the United States 
Constitution, or to trace in detail the reasons why 
the constitutions of the American States all came to 
be written documents, instead of being unwritten 
and elastic principles of government, like the Consti- 
tution of Great Britain. Without much sacrifice 
of space, however, a few salient elements may prop- 
erly here have attention drawn to them. 

The powers of the governments of the English 
colonies in America, before the Revolutionary 
war, beginning in 1775, were all written instruc- 
1 



2 • CONSTITUTIONAL HISTOEY. 

tions, accompanied by charters and grants of title 
and formulated frameworks of government. The 
English colonists were thus accustomed to written 
documents as the source of governmental power, 
and the meaning of their provisions was the test 
of governmental limitations. 

At an early date in the history of the origin and 
settlement of Yirginia no taxes were to be levied 
by the Governor without the consent of the Gen- 
eral Assembly, and when raised they were subject 
to an appropriation by the Legislature of the 
colony. The Plymouth colonists, who were the 
settlers in New England, acted originally under a 
form of voluntary compact ; but found it difficult 
to obtain proper respect for governmental au- 
thority under this voluntary form of associa- 
tion, and as early as January, 1629, by a patent 
from the Council under the charter of King James 
of 1620, obtained sanction and authority for the 
laws which they subsequently enacted. The fact 
that this Patent lacked royal assent was the ex- 
cuse for its withdrawal by Charles II., and it was 
not until 1691, under the charter granted by 
William and Mary, that unquestioned royal 
.authority was granted for the laws enacted by the 
New England colonists. 

At an early period in the history of the English 



CONSTITUTION OF THE UNITED STATES. 3 

colonies in America the rights of the inhabitants 
to personal liberty were based upon Magna Charta 
and on the Petition and Bill of Eights ; and the 
common law, except in so far as it may have been 
modified by special charters, was the prevailing 
law of the land. 

The principle upon which the common law was 
thus recognized as the prevailing law, was that it 
was the birthright and inheritance of every emi- 
grant in so far as it was applicable to his condition. 

There were three classes of government, instituted 
in America by the English crown. One was the 
provincial establishments, in which the Governor 
was made supreme ; under this form of govern- 
ment New Hampshire, New York, New Jersey, 
Virginia, the Carolinas, and Georgia were adminis- 
tered. The second was called proprietary govern- 
ments, which embraced grants to individuals with 
governmental powers ; under this form, in their 
earliest history under the English crown, Mary- 
land, Pennsylvania, and Delaware were constituted. 
The third was charter governments, of which 
Massachusetts was the leading example, and Con- 
necticut and Rhode Island as derivative forms from 
the Massachusetts grant. Under all these forms, 
in process of time, local Legislatures were estab- 
lished, which drew to themselves a considerable 



4 CONSTld^FTIONAL HrSTOET. 

proportion of tlie governmental power whicli had 
originally been parceled out to the governors of 
the colonies. In both the proprietary and charter 
governments, the colonists, during all their early 
struggles with the crown, insisted that they had an 
inherent right of representation ; the crown, on the 
other hand, insisted that it was a mere privilege, held 
at its will. In some of the colonies the laws were 
required to be sent to the King for his approval ; in 
others, they were not so required. The general 
feeling on the part of the colonists that it was their 
right to make their own laws is best expressed in 
the declaration drawn up by the Congress of the 
nine colonies assembled at New York in October, 
1765, wherein they are made to say, " that they owe 
the same allegiance to the crown of Great Britain 
that is owing from his subjects born within the 
realm, and all due subordination to that august 
body, the Parliament of Great Britain ; that the col- 
onists are entitled to all the inherent rights and lib- 
erties of his natural-born subjects within the king- 
dom of Great Britain ; that it is inseparably essen- 
tial to the freedom of a people and the undoubted 
right of Englishmen that no taxes be imposed upon 
them but with their own consent, in person or by 
their representatives; that the people of the colo- 
nies are not, and from their local circumstances 



CONSTITUTIOIS^ OF THE UNITED STATES, 5 

cannot, be represented in tlie House of Commons ; 
that the only representatives of the colonies are 
persons chosen by themselves ; that no taxes could 
be constitutionally imposed upon them but by their 
respective Legislatures ; that the supplies of the 
crown being free gifts of the people, it is unreason- 
able and inconsistent with the principle and spirit 
of the British Constitution for the people of Great 
Britain to grant to His Majesty the property of the 
colonies ; and that trial by jury is an inherent and 
invaluable right of every British subject in the 
colonies." 

The united colonies admitted the right of Par- 
liament to pass general acts for the amendment of 
the common law to which the colonies were sub- 
ject, or general acts for the regulation of trade and 
commerce throughout the whole empire, but de- 
nied the right of Parliament to pass special acts 
applicable only to a part of His Majesty's subjects, 
to wit, the inhabitants of the colonies, and more 
particularly special acts imposing taxation. The 
Stamp Act being such a special act, the colonies, 
at the invitation of Massachusetts, assembled by 
their representatives in September, 1774, at Phila- 
delphia, in a Congress, and thus established, for the 
first time in the history of the English-American 
colonies, a general deliberative body, deriving 



6 CONSTITUTIONAL HISTOEY. 

its autliority from tlie people of the colonies alone. 
This Congress continued to exercise power until 
March, 1781, and was then superseded by the Con- 
gress of the Confederation, which came into ex- 
istence during the latter part of the War of In- 
dependence ; it then being manifest that a new 
nation would be born. The Continental Congress 
avoided creating jealousy between the several col- 
onies, by placing them all, independent of size or 
numerical strength, on the same footing; inasmuch 
as each combined delegation from each separate 
colony had but a single vote. 

The second session of this Congress of dele- 
gates met in May, 1776, immediately after the 
opening of the war of Independence by the battles 
of Lexington and Concord. This Congress then 
assumed supreme direction of the war of Inde- 
pendence, and was, to all intents and purposes, the 
government of the united colonies after the 4th 
of July, 1776, when, by the promulgation of the 
Declaration of Independence, they declared their 
severance from the British crown, their right to 
make treaties with foreign governments, and their 
establishment as a nation. It appointed the offi- 
cers of the army; it pledged the credit of the 
united colonies for the payment of the expenses of 
military organization ; it apportioned the amounts 



CONSTITUTION OF THE UNITED/STATES. 



wliicli each State was to pay toward the general ex- 
penses ; it adopted rules for the government of the 
army and navy ; it granted commissions by letters 
of marque to capture the vessels of Great Britain ; 
and exercised, in short, substantially all the 
powers which subsequently, first by the Articles 
of Confederation and then more fully by the Con- 
stitution of the United States, were ceded by the 
several States to the general or national government. 
'The severance of the colonies from Great 
Britain, both by the result of the war and by the 
formal Declaration of Independence, made each 
particular colony a sovereign and independent 
State, except in so far as it might voluntarily con- 
sent to subject its sovereignty, by cession, to the 
general government of all the States. Although 
this is true of the original thirteen States, it is 
not equally true of the remaining twenty-five, as 
their very existence as States depended upon the 
fiat of the Federal Congress. 

Several of the States, between the breaking out 
of the War of Independence and the formation of 
the Articles of Confederation, framed constitutions 
of their own, in which they formally declared their 
independence of the mother country, and reenacted 
such parts of Magna Charta and the Bill of Eights 
as were applicable to their condition, together 



8 COITSTITUTIOJSrAL HISTOEY. 

witli statements of the rights of man expressive of 
tlie wider views and the more revolutionary prin- 
ciples which had found acceptance with the colon- 
ists from the freedom of movement and independ- 
ence of character incident to and formed by 
American colonial conditions. These views, as to 
forms of expression, were very considerably influ- 
enced by the theoretical teachings of the French 
Encyclopaedists, whose works, to no small degree, 
quickened the thoughts and influenced the meth- 
ods of expression of Jefferson, Adams, Madison, 
and Hamilton, who were the leading minds of the 
Continental Congress. 

Virginia, New Hampshire, New York, and South 
Carolina had, before 1778, passed constitutions for 
the people of their States as sovereignties, and 
subsequently every State of the Union, after the 
Articles of Confederation were formed, by a prop- 
erly delegated convention of its people, put in 
shape, and, by subsequent submission to the people, 
caused the passage of organic laws, called constitu- 
tions, by which the general framework of the 
institutions under which they were living was 
mapped out, the division of Executive, Judicial, 
and Legislative functions clearly defined, and the 
rights inherent in the people beyond governmental 
control, expressed and insisted upon. 



CONSTITUTION OF THE UNITED STATES. 9 

The revolutionary Congress, recognizing the fact 
that its existence would end with the struggle, and 
acting on the assumption that the struggle would 
result favorably to the colonies, appointed in June, 
1776, a committee composed of one member from 
each colony, to consider the form of Articles of Con- 
federation to be entered into between the colonies, as 
the basis of a permanent form of government. These 
Articles of Confederation formed the subject of de- 
bate in Congress until the 15th of November, 1777, 
when they were adopted. A circular letter was 
prepared to the several States requesting authority 
from the States to authorize their delegates to Con- 
gress to subscribe the Articles of Confederation. 
The States proposed many amendments, which were 
all rejected by Congress, because Congress deemed 
it inexpedient to accept any amendments for fear 
of the delay. A draft was thereupon prepared and 
sent to all the States on the 26th of June, 1778, 
and was ratified by them all, except Delaware and 
Maryland, which respectively withheld their ratifi- 
cations, the one until 1779 and the other until 1781. 

From the moment of the organization of govern- 
ment under the Articles of Confederation, the 
question of the ownership of the lands which 
theretofore had belonged to the crown, in the 
several States, was an irritating subject between 



10 COlSrSTITUTIOKAL HISTORY. 

tLe States, as was also tlie not-clearly defined 
boundaries between tlie States. The only way to 
overcome the difficulty first named, was to conform 
to the suggestion of Congress, that the several 
States should cede the crown lands within their 
borders to the general government, as lands belong- 
ing to the people at large. The name of the con- 
federacy was the United States of America. Under 
it the following powers of government were secured 
to the nation and ceded by the States : 

Congress was empowered to determine on peace 
or war with foreign nations, to send and receive 
ambassadors, and to make treaties of commerce ; 
but each State was free to levy whatever import or 
export duties it saw fit, to determine upon the rules 
of capture by land or sea, and to appoint courts 
for the trial of cases of captures on high seas and 
piracy. In all cases. of dispute between the States, 
if the agents of the States could not by joint con- 
sent agree upon judges to try their causes as they 
might arise, Congress was empowered to constitute 
a court by a most cumbersome method. Three 
persons were appointed from each State, and then 
the disputing States struck one each, until thir- 
teen remained, from which number Congress drew 
out seven or nine by lot, a majority of which de- 
termined the cause finally. 



CONSTITUTION OF THE UNITED STATES. 11 

Congress was also empowered to regulate tlie 
coinage, to afford postal facilities, and to appoint 
the officers for the land and naval forces. 

During the recess of Congress, its powers were 
conferred upon a committee of the States — one del- 
egate from each State — with the limitation, how- 
ever, that upon almost every important question 
it required the assent of nine States before the 
measure could become operative as a law. 

Under these Articles of Confederation the treaty 
of peace with England was concluded and the 
American nation was governed until the final adop- 
tion of the Constitution of the United States. The 
main defect of the Articles of Confederation was, 
that although powers sufficient to create a gov- 
ernment were ceded, there was no power to raise 
revenue, to levy taxes, or to enforce the law, ex- 
cept with the consent of nine States ; and although 
the government had power to contract debts, 
there were no means by which to discharge them. 
The government had power to raise armies and 
navies, but no means wherewith to pay them, un- 
less the means were voted by the States them- 
selves ; it could make treaties with foreign pow- 
ers, but had no means to coerce a State to obey 
such treaty. In short, it was a government which 
had the power to make laws, but no power to pun- 



13 COIsrSTITUTIOIsrAL HISTOEY. 

ish infractions thereof. Washington himself said . 
" The Confederation appears to me to be little 
more than the shadow without the substance, and 
Congress a nugatory body." 

Chief Justice Story, in summing up the leading 
defects of the Articles of Confederation, says : 
" There was an utter want of all coercive authority 
to carry into effect its own constitutional measures ; 
this of itself was sufficient to destroy its whole 
efficiency as a superintendent government, if that 
may be called a government which possessed no 
one solid attribute of power. In truth, Congress 
possessed only the power of recommendation. 
Congress had no power to exact obedience or pun- 
ish disobedience of its ordinances ; they could 
neither impose fines nor direct imprisonments, nor 
divest privileges, nor declare forfeitures, nor sus- 
pend refractory officers. There was no power to 
exercise force." 

This absence of all coercive power was most 
directly and injuriously felt in the financial adminis- 
tration of the nation. The requisitions of Congress 
for money were disregarded at will. The conse- 
quence was, that the treasury of the United States 
was empty ; the credit of the confederacy was gone ; 
and while public burdens were increasing, public 
faith was prostrate. Even the interest of the pub- 



CONSTITUTIOl^ OF THE UNITED STATES. 13 

lio debt remained unpaid, and tlie bills of credit 
that liad been issued during tbe Revolution and 
immediately subsequent thereto sank to so low 
a value that the public debt was substantially 
repudiated. As an illustration of this fact, it may 
be remarked that of the requisitions for the pay- 
ment of the interest upon the domestic debt from 
1782 to 1786, which amounted to more than six 
million dollars, only a million was paid. Each 
State saw fit to exercise its sovereign power to 
regulate commerce with the other States, and this 
created dissensions among the States ; so that in 
1784 the national Congress formally declared its 
inability to maintain the public credit or to enforce 
obedience to its own dictates, and from time to time, 
up to 1787, declared in various public ordinances 
its inability even to enforce its own treaty power. 

This state of things became intolerable, and was, 
by the leading men who had guided the colonies 
through the struggles of the War of Independence 
and aided in the formation of the Articles of Con- 
federation, recognized as a mischief which would 
result in the disintegration of the union of the 
States. Hence an active propaganda was instituted 
in all the States for the preparation of more perfect 
articles of union and the creation of a government 
representing the States as a nation. In February, 



14 COKSTITUTIOlSrAL HISTOEY. 

1787, a resolution was adopted by Congress recom- 
mending a convention in Philadelphia of delegates 
from the several States for the purpose of revising 
the Articles of Confederation, and reporting to 
Congress and the several Legislatures such altera- 
tions and provisions therein as should, when 
agreed to in Congress and confirmed by the sev- 
eral States acting as sovereigns, be adequate to 
the exigencies of government and the preservation 
of the Union, 

The convention met, and, after very full consid- 
eration, determined that amendments to the Ar- 
ticles of Confederation would be inadequate for the 
purposes of the government, and prepared a new 
Constitution, the ratification of the conventions of 
nine States to be deemed sufficient for the estab- 
lishment of the constitution among the States so 
ratifying the same. This Constitution was submitted 
to the several States, and was ratified by eleven 
of them, North Carolina and Rhode Island standing 
out, the former until November, 1789, and the 
latter until May, 1790. 

Although the government was organized by the 
ratification by eleven States, the ratification by all 
the States made that instrument the supreme law 
of the land, and that Constitution, with its amend- 
ments, from that time forth, remained the charter 



CONSTITUTIOlSr OF THE UNITED STATES. 15 

under whicli the government of tlie United States 
has been administered in all its foreign and inter- 
state relations. 

In the interpretation of this chart of government 
it must be remembered that the government of the 
United States is one of delegated powers ; that in 
theory the States possess all the sovereign powers 
not delegated, either expressly or by necessary 
implication, to the general government : and that 
the vast body of law, known as constitutional 
law, in the United States, deals first with the in- 
terpretation of these powers delegated to the gen- 
eral government, and secondly with the reserved 
rights of the States under their respective State 
constitutions, and the reserved rights of the peo- 
ple never delegated either to the State or to the 
general government. 

The history of the Constitution shows, first, that 
the compact between the States was intended to be 
indissoluble. The Articles of Confederation in 
terms said so, and when they were found inade- 
quate for the purpose, the Constitution was framed, 
" to form a more perfect union." Likewise the 
States are indestructible. The Constitution is a 
compact of States, and the States are, therefore, an 
integral part of the nation ; without them there is 
no compact which can bind non-assenting States. 



16 CONSTITUTIONAL HISTOEY. 

This has been decided in a recent case (Texas vs. 
White) by the Supreme Court of the United States. 

The Constitution makes the national government, 
in all matters delegated to it, the supreme law 
of the land, and not only is it the supreme power 
in all such matters wherein the Congress of the 
United States has, in pursuance of constitutional 
authority, acted, but it is the supreme authority 
whenever it chooses to take up a subject which is 
delegated to the government of the United States, 
although the States, in the absence of such action 
on the part of the general government, have seen fit 
to pass laws of their own to meet the emergencies. 
A notable instance of this is bankruptcy. From 
time to time bankruptcy laws have existed in the 
United States, enacted by the general Congress, 
and have been repealed. During the period of re- 
peal the various States have enacted insolvency 
and bankrupt laws which, on the instant when the 
general government again took up the subject by 
passing a new bankruptcy law, became dormant 
and inert, and remained in abeyance until the na- 
tional law was in its turn repealed. 

The Territories of the United States have no re- 
served rights. They can be dealt with by the gen- 
eral government in such way as it may see fit, and 
not until a Territory becomes sufficiently populous 



OOlSrSTITUTION OF THE UNITED STATES. 17 

to be admitted as a State does it become clothed 
with all the reserved rights of States, and when 
so clothed it is as sovereign and independent a 
community as though it had been one of the origi- 
nal thirteen States which had entered into the 
compact. 

Amendments to the Constitution are provided 
for in two ways. In the one in which Congress 
has the initiative, it may recommend amendments 
by a vote of two-thirds of both Houses, and such 
amendments shall become valid when ratified either 
by the Legislatures of three-fourths of the several 
States or by conventions of three-fourths thereof, 
as one or the other of these modes of ratification 
may be proposed by Congress. Another mode 
provided by the Constitution is for Congress, on 
the application of the Legislatures of the several 
States, to call a convention for proposing amend- 
ments; the work of which convention must be 
equally ratified by the Legislatures of three- 
fourths of the States or by conventions in three- 
fourths thereof. The only limitation upon the 
power of amendment of the Constitution is, that no 
' State, without its consent, shall be deprived of its 
equal suffrage in the Senate. This provision was 
deemed necessary in order to prevent an amend- 
ment by the more populous and larger States which 



18 COlSrSTITUTIOlSrAL HISTOET. 

should deprive tlie few smaller States, such as 
Rhode Island or Delaware, of their equal repre- 
sentation in the Senate. This power of amendment 
takes away all excuse for revolution, because the in- 
strument which is the supreme law of the land pro- 
vides a method by which the popular will can act 
jipon it so as to remedy or remove any existing or 
supposed abuses. 

The general provisions of the Constitution which 
do not fall under the divisions of Legislative, Ju- 
dicial and Executive functions, are enumerated in 
the fourth and sixth articles of the Constitution of 
1789, the amendments of 1789, and 1790, 1794, 
1798, 1804, and what are known as the thirteenth, 
fourteenth and fifteenth amendments, which were 
the result of the Civil War. These provisions 
in general terms provide that full faith and credit 
shall be given in each State to the public acts, 
records, and judicial proceedings of every other 
State ; that the citizens of each State shall be en- 
titled to the privileges and immunities of the citi- 
zens of the several States ; that persons who are 
fugitives from justice shall be delivered up to 
the State having jurisdiction of the crime ; a pro- 
vision by which persons who were held to labor 
in one State were required to be delivered up if 
they fled into another for the purpose of escap- 



CONSTITUTION OF THE UNITED STATES. 19 

ing from sucli servitude ; a section allowing States 
to be admitted into tlie Union, but prohibiting Con- 
gress from creating new States from existing States 
without the consent of the latter ; and that the 
United States shall guarantee to every State in the 
Union a republican form of government, shall pro- 
tect each against invasion, and on the application 
of the Legislature, or of the Executive of a State 
when the Legislature cannot be convened, protect 
it from domestic violence. 

The first amendments which were deemed neces- 
sary to tlie Constitution after its formation were 
proposed almost immediately after its adoption, 
and were rather in the nature of after-thoughts 
better to protect thj rights of individual liberty. 
The first article of the amendments 23rovides that 
Congress shall make no law respecting the estab- 
lishing of religion, or prohibiting the free exer- 
cise thereof, or abridging the freedom of speech, or 
of the press, or the right of the people peaceably 
to assemble, or to petition the government for a re- 
dress of grievances. The second article provides that 
a well-regulated militia being necessary to the secu- 
rity of a free State, the right of the people to keep 
and bear arms shall not be infringed. The third, 
that no soldier shall in time of peace be quartered 
at any house without the consent of the owner, and 



20 CONSTITUTIONAL HISTOEY. 

in time of war, but in a manner to be prescribed by 
law. The fourth, that the right of the people to be 
secure in their persons, houses, papers and effects 
against unreasonable searches and seizures, shall 
not be violated, and that no warrants shall issue but 
upon probable cause supported by oath or affirma- 
tion, and particularly describing the j)lace to be 
searched and the person or things to be seized. 
The fifth, that no person shall be held to answer for 
a capital or otherwise infamous crime unless upon 
a presentment or indictment of a grand jury, except 
in cases arising in the land or naval forces, of the 
militia when in actual service in time of war, or 
public danger ; and that no person shall, for the 
same offense, be put twice in jeopardy of life or 
limb, nor be compelled in any criminal case to 
be a witness against himself, nor be deprived of 
life, liberty, or property, without due process of 
law, and that private property shall not be taken 
for public use without just compensation. The 
sixth is to the effect that in all criminal prosecu- 
tions the accused shall enjoy the right to a speedy 
and public trial by an impartial jury of the State 
and district wherein the crime shall have been 
committed, which district shall have been pre- 
viously ascertained by law, and to be informed of 
the nature and cause of the accusation, to bo con- 



COISrSTITUTIOT^' OF THE UNITED STATES. 21 

fronted witli tlie -witnesses against him, to have 
compulsory process for obtaining witnesses in his 
favor, and to have the assistance of counsel for his 
defense. The seventh, that in all suits at common 
law, where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be 
preserved. The eighth is to the effect that exces- 
sive bail shall not be required, nor excessive fines 
imposed, nor cruel or unusual punishments inflicted. 
The ninth, to prevent any misconstruction by the 
courts, that rights not specially reserved by the 
people are therefore withheld from arbitrary power, 
specifically says that the enumeration in the Con- 
stitution of certain rights shall not be construed to 
deny or disparage others retained by the people. 
The tenth, that powers not delegated to the United 
States by the Constitution, nor prohibited by it to 
the States are reserved to the States respectively or 
to the people. The eleventh was proposed in Sep- 
tember,. 1794, by Congress, and was ratified in 
January, 1798, and is to the effect that the judicial 
power of the United States shall not be construed 
to extend to any suit in law or equity commenced or 
prosecuted against one of the United States by 
citizens of another State, or by citizens or subjects of 
any foreign State. The force and effect of the twelfth 
amendment, which was adopted in 1804, in rela- 



22 co]srsTiTUTio:jirAL history. 

tion to tlie election of the President of the United 
States, will be considered in connection with the 
creation and powers of the Executive department 
of the government. The thirteenth, fourteenth 
and fifteenth amendments were the result of the 
Civil War, 1861-1865. Their declared object, pur- 
pose and meaning were forever to abolish the sys- 
tem of slavery or domestic servitude, and to prevent 
thereafter all class distinctions or inequalities 
before the law arising from color, race, or previous 
condition of servitude. A stringent provision was 
made to prevent persons from holding office who 
had been in office and had taken an oath to sup- 
port the Constitution of the United States prior to 
the rebellion, but who, notwithstanding such oath, 
were engaged subsequent thereto in insurrection or 
rebellion. It was provided, however, that Congress, 
by a vote of two-thirds of each House, might remove 
such disability. A provision was made to pre- 
vent the validity of the public debt of the United 
States from being questioned, and to prevent the 
United States, or any State, from assuming any 
debt or obligation incurred in aid of insurrection or 
rebellion against the United States, or recognizing 
any claim for the loss or emancipation of any slave, 
and that all such debts and obligations and claims 
shall be held illegal and void. The representative 



CONSTITUTION OF THE UNITED STATES. 23 

system, by representation of majorities only in geo- 
graphically defined districts, was adopted as tlie 
cardinal and underlying principle upon which, was 
to be created the law-making power under the Con- 
stitution of the United States, and of the several 
States. Wherever Congress is required to act, or 
the people of the several States are required to 
act, through their Legislatures, the intent is that 
such congressional action or legislative action 
shall be performed by a mere majority, unless oth- 
erwise declared. 

In considering also the provisions of the Consti- 
tution, it must be borne in mind that they are 
largely the result of compromise. The jealousy 
of the States of each other was the cause of the 
threatened dissolution of the Confederacy under 
the system of government which prevailed in the 
United States of America from the close of the war 
in 1783 until 1789, the year of the adoption of the 
Constitution of the United States. 

When, in consequence of the pressure that arose 
from the evident inadequacy of the Articles of 
Confederation to create a permanent form of gov- 
ernment, the people of the United States called 
a convention to consider provisions for the forma- 
tion of a more perfect union, the members of the 
convention were, more or less, under the influ- 
ence of this local jealousy, and the organization of 



24 CONSTITUTIOlSrAL HISTOET. 

the Senate, giving to each. State two members, 
independent of the numbers, wealth, or position of 
the State, was intended to placate the smaller 
States and to make them feel that, although under 
a system of representation dependent upon nu- 
merical strength they would lose power in the lower 
House, they would still, by the veto power that the 
upper House had over the legislation of the lower, 
preserve their dignity as States and prevent the 
possibility of the passage of laws detrimental to 
their interests. Thus, it happens, for instance, 
that the new State of Colorado, although having 
two Senators, has but one Representative, its 
numerical strength being just sufficient for a single 
Representative in the House of Representatives; 
yet its admission as a State entitles it to equal 
position in the Senate with the State of New York 
with its five millions of inhabitants. 

From an early period in the history of the United 
States, down to the commencement of the Civil 
War, the general theory was hotly disputed whether 
the Constitution of the United States was a com- 
pact between the several States, or was a frame- 
work of government which did not admit of the 
idea of compact. On the one hand it was con- 
tended that, as there is no common umpire or 
tribunal authorized to decide as a last resort upon 



COlSrSTITUTION OF THE UNITED STATES. 25 

the powers and interpretation of the Constitution, 
each State had a right to construe the compact for 
itself. Such was the resolution of Virginia as early 
as 1829 ; such was the resolution of South Carolina 
when it attempted to nullify the tariff legislation 
of the United States in 1831. But this theory is 
refuted by the very wording of the Constitution 
itself, which says that it is ordained and established 
by the people of the United States to create a more 
perfect union ; and, as all the States were parties to 
it, no one State could construe it against the rights 
of the other States. Such an interpretation is 
against the theory of government itself, which pro- 
hibits any State which has once delegated its powers 
to a sovereign,, from reasserting such power, with- 
out the consent of such sovereign ; and leads to 
the absurdity of claiming the possibility of carry- 
ing on a government which would give to each 
member thereof the right to deny the very exist- 
ence of the government itself whenever it feels the 
pressure of the governmental hand. 

On all constitutional questions the Constitution 
appointed a tribunal which was to expound its pro- 
visions, and, therefore, no province was left to the 
Legislatures or courts of the several States to de- 
termine the limit of the United States Government. 
The Supreme Court of the United States was the 



26 COJSrSTITUTIOlSrAL histoet. 

final interpreter of all the powers conferred upon 
tlie general government. The Civil War of 1861- 
1865 originating from the desire of the Southern 
States to preserve slavery, uninterfered with by the 
sentiments of the Northern States, and to maintain 
the doctrine of State rights, resulting disastrously 
to the South, took that branch of constitutional con- 
troversy out of American politics. By the amend- 
ments since 1865 the political fact has been estab- 
lished that the United States Government is indis- 
soluble, and that the Constitution created not a 
partnership between the States, but a form of gov- 
ernment for the States, from which such States 
could not withdraw ; and that, instead of remitting 
questions between the States to the arbitrament of 
the sword, they had to find peaceful solution after 
argument before the Supreme Court of the United 
States, or by amendment of the Constitution itself. 
The fourteenth amendment will oj)erate to prevent 
unequal taxation within the States. Heretofore there 
was no limitation upon States (except in so far as the 
State Constitutions may have prevented them) as to 
acts of confiscation under the guise of tax laws ; but 
this amendment, by securing equal protection of the 
laws, sets a limit, which has just been recognized 
by the Circuit Court of the United States, to spoli- 
ation under the forms of taxation. 



CHAPTER 11. 

THE LEGISLATIVE DEPAETMENT. 

We have thus far, in our examination of the pro- 
visions of the Constitution of the United States, 
shown that the reason why the Articles of Confed- 
eration failed to accomplish their purpose to create 
a nation, was because the national authority, as 
created by such Articles, was stripped of the ele- 
ment of sanction. There was, in the first place, 
no supreme executive power ; in the second place, 
the Federal Congress had simply power, until 
the adoption of the Constitution of 1789, to pass 
laws without enforcing them, and they were there- 
fore in the nature of mere recommendations. The 
clear and unequivocal surrender of power on the 
part of the States of certain well-defined govern- 
mental functions to the national government, and the 
general transfer of power involved in that grant of 
the Constitution which says " that all legislative 
power by the Constitution granted shall be vested 
in a Congress of the United States which shall con- 

27 



28 cojsrsTiTUTioisrAL history. 

sist of a Senate andHouse of Representatives," as in- 
terpreted by the Supreme Court of the United States, 
gives to the national Legislature power to pass 
laws on all subjects of which the United States has 
jurisdiction either by direct grant or by implication. 
The House of Representatives is composed 
of members chosen every second year by the 
people of the several States, and the qualifica- 
tions requisite for electors are the same as those 
which the State constitutions require for electors of 
members in the same branch of the respective State 
Legislatures. The qualifications of representatives 
are that each representative shall have attained the 
age of twenty-five years, that he shall have been 
seven years a citizen of the United States ; and that 
he be an inhabitant of the State in which he shall be 
chosen. Under the Constitution of 1789 the rep- 
resentatives a^well as direct taxes were apportioned 
among the several States according to the number of 
their inhabitants, which included all free persons 
and those bound to service for a term of years ; 
three-fifths of all other persons, which of course 
meant slaves, and excluded Indians not taxed. The 
first enumeration after the adoption of the Constitu- 
tion was to be made within three years after the first 
meeting of the Congress, and thereafter every ten 
years. The number of representatives then fixed was 



THE LEGISLATIVE DEPARTMENT. 29 

to be one for every thirty tliousand, but each State 
was to have at least one representative. This provi- 
sion was subsequently changed by the fourteenth 
amendment, to the requirement that the represen- 
tatives should be apportioned among the several 
States according to their respective numbers, count- 
ing the whole number of persons in each State, ex- 
cluding Indians not taxed ; and that when the right 
to vote at any election for the choice of electors for 
President and Vice-President of the United States, 
of Representatives in Congress, of the Executive 
and Judicial officers of a State, or members of the 
Legislature thereof, is denied to any one of the male 
inhabitants of such State, being twenty-one years of 
age and a citizen of the United States, or in any 
way abridged, except for participation in rebellion 
or other crime, the basis of representation therein 
shall be reduced in the proportion which the num- 
ber of male citizens shall bear to the whole number 
of such male citizens twenty-one years of age in such 
State. The object of this amendment, which was 
adopted in 1866, was to prevent the slave States, 
which theretofore had been in rebellion, from 
abridging or limiting the right of suffrage on the 
part of the negroes for State offices, without incur- 
ring the penalty of diminishing thereby their rep- 
resentation in the House of Representatives of the 



30 CONSTITUTIONAL HISTOEY. 

United States. Under the Co]istitution as it origin- 
ally stood the States were at liberty to determine 
as they saw fit the manner in v/hich these repre- 
sentatiyes were to be elected within the States, or 
Congress was at liberty to legislate upon the sub- 
ject in furtherance of the constitutional provision 
as to representation. 

Congress did from time to time apportion the num- 
ber of representatives to each State in conformity 
with the census of each decade, so that in 1872, 
under the census of 1870, an apportionment was 
made hj which the number of the members of 
the House of Representatives was fixed at 292. 
As the population of the United States from 
time to time increased, Congress likewise by law 
advanced the limitation of the number of persons 
who were entitled to single representatives, in 
order that the popular body should not become too 
numerous for purposes of deliberation ; so that 
under the census of 1870, by act of 1872, each 130,000 
of the population is entitled to one representative. 
By the act of 1872 making such apportionment, 
following the preceding acts of apportionment, 
it is required that Representatives to Congress 
shall be elected by districts composed of contigu- 
ous territory, containing as nearly as practicable 
an equal number of inhabitants, and equal in 



THE LEGISLATIVE DEPAETMENT. 31 

number to the number of representatives to which 
the State in which they lie may be entitled in Con- 
gress, no one district electing more than one rep- 
resentative. This is followed by a provision that 
as to the then immediately succeeding Congress 
the additional rejoresentatives to which each State 
should be entitled under the apportionment might, 
until otherwise provided for by the Legislature, be 
voted for upon a ticket at large. The only national 
requirement, therefore, as to election of representa- 
tives is, that they shall be elected by contiguous 
territories, one from each district. The manner in 
which the apportionment is to be made, the way in 
which districts are to be apportioned, the lines 
forming such districts, are all left to the legislative 
bodies of the several States. The apportionment 
act of 1872, which is the last apportionment act in 
force, provides the Tuesday after the first Monday 
in November of every second year as the day of 
election in all the States and Territories for rep- 
resentatives and delegates to the Congress of the 
fourth day of March next thereafter. The time for 
holding elections in any such district or territory 
for representative or delegate to fill the vacancy is 
prescribed by the laws of the several States and 
Territories. The vote for representatives is re- 
quired under the provisions of Congress to be by 



32 COTSrSTITUTIONAL HISTOEY. 

Fallot. The compensation of members of Congress 
is $5,000 a year, and an allowance for actual travel- 
ing expenses. 

At tlie first session of Congress after every 
general election of representatives, the oath of 
office may be administered by any member of the 
House of Representatives to the Speaker, and by 
the Speaker to all the members and delegates 
present, and to the Clerk, previous to entering on 
any business, and to members and delegates as 
they afterward appear, previous to their taking 
their seats. Before the first meeting of each 
Congress the Clerk of the next preceding House 
of Representatives makes the roll of the rep- 
resentatives elected, placing thereon the names 
of those persons only whose credentials show 
that they were regularly elected, in accord- 
ance with the laws of the United States. The 
Sergeant-at-arms is charged with the duties of 
the Clerk in the event of any vacancy in that 
office, and in the event of the disabilit}^ or absence 
of the Clerk ; and in the event of the disability or 
absence of both Clerk and Sergeant-at-arms, the 
Door-keeper of the next preceding House of 
Representatives is charged with this duty. In the 
event of Congress being prevented, by a contagious 
disease or the existence of other circumstances, 



THE LEGISLATIVE DEPAETMENT. 33 

making it, in tlie opinion of the President, hazard- 
ous to the lives of members to convene at the seat 
of government, he is authorized to convene them 
at such other place as he may judge proper. 

The Senate is constituted of the senators elected 
by the Legislature of each State. The election 
takes place on the second Tuesday after the meet- 
ing and organization of the Legislature ; and if an 
election fails to be made on the first day, at least 
one vote is required to be taken every day there- 
after, during the session of the Legislature, until 
a Senator is chosen. A vacancy existing at the be- 
ginning of the session is filled in the same manner, 
and if a vacancy occurs during the session it is also 
filled by election, the proceedings for which are to be 
commenced on the second Tuesday after the Legis- 
lature has organized and has notice of such 
vacancy. The number of senators is fixed at two 
from each State, independent and irrespective of 
the size of the State or the number of its in- 
habitants; so that there are several instances of 
States, notably Oregon and Delaware and Nevada, 
which have two senators and but one representa- 
tive. 

No person can be a senator who has not attained 

the age of thirty years, been nine years a citizen 

of the United States, and who shall not have 
3* 



34 CONSTITUTIOlSrAL HISTOET. 

been, -when elected, an inhabitant of tlie State 
from wliicli lie sliall be cbosen. 

Senators are chosen for six years. They are 
divided into three classes, one class being chosen 
every second year. If vacancies happen, the Exe- 
cutive of a State may make a temporary appoint- 
ment until the Legislature of the State can act. 

The Vice-President of the United States is the 
President of the Senate, but without a vote, except 
in cases of equal division. The Senate chooses its 
other officers and also a President pro tempore in 
the absence of the Yice-President, or when he shall 
exercise the office of President. 

The organization of the Senate is provided for by 
the act of June 1, 1789. The oath of office is ad- 
ministered by the President of the Senate to the 
senators elected previous to his taking his seat. 
When a President of the Senate has not taken the 
oath of office, it is administered to him by any 
member of the Senate. 

Congress is the law-making power. One House 
contains the direct, immediate representatives of 
the people, the other the indirect representatives 
of the people ; i.e., the direct representatives of the 
States. Besides being part of the law-making 
power, the Senate shares with the President the 
power of appointment to office, of making treaties 



THE LEGISLATIVE DEPARTMENT. 35 

of peace and declarations of war. Although, Con- 
gress cannot be said to be superior to the co- 
ordinate Judicial and Executive departments of 
the Government, it nevertheless has, from the 
nature of its functions, the superior power. The 
history of the United States since 1865 gives 
several instances of the manner by which both the 
Judicial and Executive departments of the United 
States Government may, in cases of conflict, be 
coerced to a considerable degree by the law-making 
power. Notable instances of this coercion are the 
acts of Congress interfering with the Executive dis- 
cretion of President Johnson when he was in direct 
conflict with the majority of both Houses of Con- 
gress, and his subsequent impeachment and all but 
conviction and removal ; and the increase in the 
number of the judges of the Supreme Court of the 
United States, when a decision had been rendered 
upon a quasi-political subject — the constitutionality 
of the Legal Tender act, which did not conform to 
the opinions of the Executive and Legislative 
departments, and which was, therefore, to be re- 
argued and reversed, an increase of personnel of 
the court of last resort being the coercive method 
found effective to secure such a result. 

Among the formalities of the organization of 
Congress, not heretofore referred to, are constitu- 



36 CONSTITUTIOl^AL HISTOET. 

tional provisions to the effect that Congress shall 
assemble at least once in every year, and that the 
meeting shall commence on the first Monday in 
December, unless by law a different day be ap- 
pointed. Each House is made the judge of the 
elections, return, and qualifications of its own 
members. A majority is constituted a quorum for 
the transaction of business, but power is given 
to a smaller number to adjourn from day to day 
and to compel the attendance of absent members. 
Congress is empowered to make rules for its own 
government, and each House makes its own rules. 
The expulsion of a member is given to two-thirds 
of either House. Neither House has the power 
during the session to adjourn, without the consent 
of the other House, for more than three days, nor 
to any other place than the one appointed by law. 
No senator or representative is permitted, duriiig 
the term for which he is elected, to be appointed 
to any civil office under the authority of the United 
States, which shall have been created or the emol- 
uments whereof shall have been increased dur- 
ing such term of service, and no person holding any 
office under the United States shall be a member 
of either House during his continuance in office. 

All revenue laws must originate in the House oi 
Representatives. This includes all appropriation 



THE LEGISLATIVE DEPARTMENT. 37 

bills, but the Senate is permitted to propose or 
concur with amendments in the same manner as on 
other bills. Power is given to Congress to levy 
and collect taxes, duties, imposts, and excises ; to 
pay the debts, and provide for the common defense 
and general welfare of the United States ; but such 
duties, imposts, and excises must be uniform 
throughout the United States. We have already 
referred to the fact that the absence of such a 
power given in express terms, or even by necessary 
implication, and the absence of any power to 
enforce a system of taxation, was the main cause of 
the failure of the United States to form a stable 
government under the Articles of Confederation. 

In many forms has the question of the consti- 
tutional exercise of this power been before the 
Supreme Court of the United States. The result 
of these decisions may be summed up as follows : 
Congress has power to levy such taxes and imposts 
as it may see fit for public purposes. It was 
claimed that customs duties levied with the ulterior 
purpose of protecting home industry, were an un- 
constitutional exercise of power under this grant, 
for the reason that such duties are not levied with 
the view to the raising of revenue, but, on the con- 
trary, for the purpose of enabling manufacturers 
within the United States to increase profits on 



38 CONSTITUTIONAL HISTOET. 

products for the benefit of their private operations. 
It was held by the Supreme Court of the United 
States, that if any revenue whatever was raised 
from this source, the motive could not be inquired 
into, and that the indirect benefit to classes in the 
community of this mode of raising revenue was 
one of the consequences which did not come within 
judicial cognizance It was held, however, by the 
Supreme Court of the United States in the case of 
Loan Association against Topeka, 20 Wallace, 655, 
that where, however, the tax is avowedly laid for a 
private purpose, it is illegal and void. In this case 
the tax, having been avowedly laid to aid a private 
corporation in creating a manufacturing establish- 
ment, was held to be an illegal exercise of the tax- 
ing power. This case has been followed in several 
of the States, and creates a line of cases which in 
time, as public opinion in the United States may 
be ripened and educated by politico-economical 
studies, may lead to a reversal by the Supreme 
Court of the United States of its opinion that taxa- 
tion for incidental protection under the guise of 
revenue laws is a constitutional exercise of power. 
Thus may possibly be given to the United States 
the full benefit of free-trade doctrines through an 
interpretation by the Supreme Court of the United 
States, namely, that all customs duties must be 



THE LEGISLATIVE DEPARTMENT. 39 

levied for purposes of revenue only, and that if it 
appears to the court that the object is not one of 
revenue, but the incidental benefit of persons or 
classes in the community, it is unequal taxa- 
tion ; is a burden laid not for purposes of govern- 
ment, but for private purposes, and is, therefore, 
unconstitutional and void. 

Where Congress has the power to tax, the States 
are prohibited from exercising the same power, 
under the general exposition that what is granted 
to the government of the United States is taken 
away from the several States ; and when Congress 
exempts from taxation in express terms, the States 
are ipso facto inhibited from imposing taxation upon 
the same commodity or asset. For instance, the 
bonds of the United States are, by the contract of 
the bondholder with the federal government, incor- 
porated into the law creating the bonds, exemj^ted 
from taxation. Under those circumstances it would 
be an illegal exercise of power on the part of the 
States or municipalities to tax such bonds. 

In a leading case decided by the Supreme Court 
of the United States it was fully recognized that 
the power to tax involved the power to destroy. 
As the Union and the State governments are coor- 
dinate branches of the polity of the United States, 
and as to tax the State governments or the muni- 



40 COlSrSTITTJTIOlSrAL HISTORY. 

cipalities created tliereunder, would involve the 
power to destroy the States or such muncipalities, 
Congress is by the very nature of such institutions 
inhibited from levying any such tax. Congress, 
therefore, cannot tax the salaries of State officers, 
franchises created by a State, municipal corpora- 
tion, of a State, processes of State courts, etc. 

Congress is empowered to borrow money on the 
credit of the United States. The meaning of this 
clause is too clear to require judicial interpretation, 
and gives constitutional sanction to the funded debt 
of the United States. Congress is authorized to 
regulate commerce with foreign nations, and among 
the several States, and with the Indian tribes. 
This power to regulate commerce with foreign 
nations involves, of course, the treaty-making 
povfer; to make such arrangements in relation to 
the commerce, resting on mutual comity, as exi- 
gencies may from time to time demand. The power 
to regulate commerce between the several States 
involves, of course, the power to regulate commerce 
on the navigable rivers and streams which run be- 
tween the several States. And more recently, in 
consequence of the growth of inter state traffic" and 
the establishment of railways which run through 
many States, and of telegraphic lines which spread 
their net-work over the whole of the domain of the 



THE LEGISLATIVE DEPAETMEIS^T. 41 

United States, this power has been invoked by the 
people of the United States as a means of assert- 
ing uniform jurisdiction over corporate franchises 
coextensive in their exercise with the United States 
of America, although chartered under the several 
State laws. 

The question of railway and telegraph monopoly 
has in recent years become much agitated in the 
United States, in consequence of the raj)id growth 
of those several interests. The power of the Na- 
tional Congress to regulate such enterprises organ- 
ized under State corporate franchises, but really 
carrying on inter-state commerce, has been rec- 
ognized by the Supreme Court of the United 
States. Although ordinarily the safer course of 
legislation is toward decentralization of power, 
it is nevertheless true that in the case of in- 
dustrial enterprises having a tendency to central- 
ization within the area of the vast territory of the 
United States, the governmental power to regulate 
these enterprises, if they partake in the least of a 
monopoly character, must be equally coextensive 
with the territory they occupy. As the several 
States have shown themselves powerless to deal 
with the subject either in an efficient way or upon 
a uniform plan, the power of the United States, now 
placed beyond question by the decisions of the 



42 CONSTITUTIONAL HISTOET. 

Supreme Court of tlie United States, to regulate 
these gigantic industrial enterprises is well lodged 
in Congress. 

Power is given to tlie Congress of the United 
States to establish a uniform rule of naturalization 
and uniform laws on the subject of bankruptcy 
throughout the United States. The grant of this 
power of naturalization has been followed by 
national legislation from time to time, by which 
persons who are residents of the United States for 
five years can become citizens thereof by following 
certain prescribed forms of identification, declara- 
tion of intentions, etc. Exceptions of an unim- 
portant character are made in cases of minors. 

The bankruptcy legislation of the United States 
has been extremely spasmodic. When a bank- 
ruptcy law exists the States are prohibited, by 
necessary implication, from enforcing insolvency 
laws in conflict with the bankruptcy laws. "When 
the bankruptcy laws are repealed, as they fre- 
quently have been and as is the case at present, 
the State insolvent laws once more come into 
force. While the federal bankruptcy laws are on the 
statute book and in force, all State insolvent laws, 
if inconsistent, are for the time being superseded. 

Congress is empowered to coin money and to 
regulate the value thereof and of foreign coin, and 



THE LEGISLATIVE DEPARTMENT. 43 

fix a standard of weights and measures. Under 
this grant of power, the right of the issue of the 
United States Treasury notes made legal tender at 
the beginning of the Civil War was seriously con- 
tested. At first a decision was had, under the pre- 
siding justiceship of Mr. Chase, who was Secretary 
of the Treasury when such notes were issued, de- 
claring such issue to be in contravention of the 
Constitution of the United States. This decision 
was subsequently reversed by a court which had 
in the interim become enlarged, and it was held 
that this issue of legal tender notes, made during 
the war, though not justified strictly under the 
power granted, was the exercise of a war power, 
and was naturally limited to a condition either of 
domestic insurrection or foreign invasion. While 
this decision stands, there is no cause to appre- 
hend that under the power to coiu money and to 
regulate its value, any addition Vv^ill be made to the 
legal tender issiie of the United States. 

Congress is empov/ered to provide for the punish- 
ment of counterfeiting securities and current coin 
of the United States ; to establish post-offices and 
post roads ; promote the progress of science and 
useful arts by securing for limited times to authors 
and inventors the exclusive right to their respective 
writings and discoveries. Under this pov,^er the 



44 COlSrSTITUTIOlSrAL histoet. 

Patent Office* was organized, and patent, trade mark, 
and copy-riglit laws passed, securing for limited 
periods of time the rights of inventors and authors 
in their respective inventions and books. 

Congress is empowered also to constitute tribu- 
nals inferior to the Supreme Court. In the third 
article creating the judicial power of the United 
States, such power is vested in the Supreme Court 
and in such inferior courts as Congress may from 
time to time ordain and establish. This article 
further provides that the Judges, both of the 
Supreme and inferior courts, shall hold their office 
during good behavior, and shall at stated times 
receive for their services a compensation which shall 
not be diminished during their continuance in 
office. Under these two several sections of the 
Constitution of the United States, Congress, from 
1789 to 1876, from time to time, passed judiciary 
laws under which district courts were organized, 
which give to each State, substantially, one district 
judge (to Pennsylvania, however, two, to New York 
two, to Ohio two, to Illinois two), and circuit 
courts of nine circuits with one judge for each 
circuit. The judges of the SujDreme Court of the 
United States when not sitting in banc likewise hold 
circuit courts. The Judicial department of the 
United States being created under a separate article 



THE LEGISLATIVE DEPAETMENT. 45 

of the Constitution, we will reserve our further 
examination into the organization of these courts 
and their jurisdiction until we reach that head. 

Congress has exclusive jurisdiction in defining 
and punishing felonies committed on the high 
seas, and offenses against the law of nations; 
to declare war, and grant letters of marque 
and reprisal, and to make rules concerning 
captures on land and water ; to raise and support 
armies, but no appropriation of money to that end 
shall be for a longer term than two years ; to pro- 
vide and maintain a navy ; to make rules for the 
government and regulation of the land and naval 
forces ; to provide for calling forth the militia for 
executing the laws of the Union ; to suppress in- 
surrections and repel invasions ; to provide for 
organizing the army and disciplining the militia, 
and for governing such part of them as may be 
employed in the service of the United States, re- 
serving to the States respectively the appointment 
of the officers and the authority of training the 
militia according to the discipline prescribed by 
Congress. Under the pov/er to make rules for the 
government of the land and naval forces, Congress 
has not the power to make any rules inconsistent 
with the position of the President of the United 
States as Commander-in-chief. The Constitution 



46 CONSTITUTIOn^AL HISTOET. 

appoints lam the first officer of tlie army, and tlie 
laws of war give to tlie first officer powers, of which. 
Tinder the guise of rules and regulations, he cannot 
be stripped. The manner in which the President 
makes his requisition for militia is by a call upon 
the Executive of a State, but he is not required to 
recognize the chief Executive of a State; he can 
make his call directly upon the militia officers. 
Although the States have the power to appoint 
officers for the militia, they are all outranked by 
the Commander-in-chief, when called by him to 
the service of the United States, and outranked by 
any general or other officer who may be appointed 
over them. 

The object in providing that no appropriation of 
money for army purposes shall be for a longer 
period than two years, is obviously that no Con- 
gress subservient to the Executive power shall 
create a standing army to be placed under the con- 
trol of the chief Executive of the Union and make 
permanent provision therefor. The necessity to 
ask from time to time the popular consent for 
army appropriations through the instrumentality 
of Congress, will, it is supposed, forever prevent 
an army being created which shall be used in a 
manner opposed to the popular will. 

Congress has power to exercise exclusive legisla- 



THE LEGISLATIYE DEPAETMENT. 47 

tion in all cases wliatsoever over such district, not 
exceeding ten miles square, as may, by a cession 
of particular States and tlie acceptance of Con- 
gress, become the seat of government of the United 
States, and to exercise like authority over all 
places purchased by the consent of the Legisla- 
ture of the State in which the same shall be, for 
the erection of forts, magazines, arsenals, dock- 
yards, and other needful buildings. Under this 
section of the Constitution the District of Columbia 
was ceded by the State of Maryland to the United 
States for the establishment of the seat of govern- 
ment at Washington on the Potomac, and Congress 
has exclusive jurisdiction over the government in 
that district. It provided the district with a mu- 
nicipal administration, which, however, in conse- 
quence of the abuses incident thereto, was abol- 
ished, and it is now governed directly by a 
committee of Congress. 

Crimes committed within a fort, magazine, ar- 
senal, or dock-yard, or other building of the United 
States, are cognizable only in the United States 
courts within their respective districts. 

Congress is empowered to declare the punish- 
ment of treason, but no attainder of treason shall 
work corruption of blood, or forfeiture, except dur- 
ing the life of the person attainted. 



48 COlSrSTITUTIOlSrAL histoey. 

Congress is further" empowered to make all laws 
wMch shall be necessary and proper for carrying 
into execution the foregoing powers, and all other 
powers vested by the Constitution in the govern- 
ment of the United States, or in any department or 
officer thereof. 

Although under this general grant of all power 
necessary to carry into execution the powers specif- 
ically enumerated, no new power has been granted, 
such a clause was, nevertheless, necessary for the 
purpose of preventing captious objections to the 
exercise of power by necessary implication arising 
from powers already granted, simply because such 
powers were not expressed in set terms. Under 
this grant of implied powers, it was held that 
Congress could charter a national bank, and that 
it could make appropriations for internal improve- 
ments. Under this grant of implied power, it was 
held by the Supreme Court of the United States 
that Congress might organize a form of State gov- 
ernment for the States which were in insurrec- 
tion, and which immediately after the Civil "War 
for the time being had thereby lost their frame- 
work of government. 

Shortly after the adoption of the Constitution, 
by reason of the serious controversy which was 
then threatening war with France, the so-called 



THE LEGISLATIVE DEPARTMENT. 49 

Alien and Sedition laws were passed, by the first 
of which the President of the United States was 
empowered to order any aliens out of the country 
whose presence was supposed to be dangerous to 
the community, and this in time of peace. The 
Sedition laws made it a crime for persons unlaw- 
fully to combine or conspire together with the 
intent to oppose any measure or measures of the 
United States, etc., or to write, print, utter, or 
publish, or cause or procure to be written, etc., 
any false, scandalous and malicious articles against 
the government of the United States, or either 
House of Congress, so as to stir up sedition, etc. 
These laws, although upheld by the judiciary, were 
so obnoxious to many of the States of the Union 
that their presence upon the statute book resulted 
in the passage of resolutions by the Legislatures 
of several States — Virginia and Kentucky — by 
which they nullified such laws within their own 
States. Rather than force a conflict upon this 
point, the laws were repealed. 

Under the ninth section of the first article of the 
Constitution, restricting the powers of Congress 
and of the States, it is provided that the migra- 
tion or importation of such persons as any of the 
States now existing shall think proper to admit, 
shall not be prohibited by Congress prior to the 
3 



50 CONSTITUTIOlSrAL HISTOET. 

year 1808, but a tax or duty may be imposed on 
such importation, not exceeding ten dollars for eacli 
person. This was an awkward and obscure pro- 
vision, adopted to prohibit Congress from prevent- 
ing the importation of slaves until 1808, In that 
resjDect it resembles the provision requiring the 
States to surrender fugitives who were held to 
service in other States. The framers of the Con- 
stitution were evidently extremely unwilling to 
use the term slave in the instrument, and so in 
several instances resorted to a paraphrase. 

Congress was forbidden to suspend the writ of 
habeas corpus, except when, in case of rebellion or 
invasion, the public safety may require it. It has, 
however, been expressly held by the Supreme Court 
of the United States that the power to suspend the 
writ of habeas corjDus exists only in the case of 
war or insurrection as to the district which is the 
theatre of war or insurrection, and not where 
the civil tribunals exercise full and undisputed 
authority. 

Congress is forbidden to pass any bill of attainder 
or ex post facto law. Although there is secured to 
each man accused of a crime the right to be con- 
fronted by his accusers, and to a trial by a jury, 
which would seem necessarily to forbid the passage 
of any bill of attainder, yet, to place the rights 



THE LEGISLATIVE DEPAETMENT. 51 

of the people beyond doubt, it was deemed expe- 
dient to put in express terms that no man shall be 
convicted by bill, and that no man shall be con- 
victed of a criminal offense under a law passed 
subsequent to the committing of the act. Under 
this prohibition as to the passage of ex post facto 
laws, it has, however, been held that this does not 
forbid Congress from passing retroactive laws in 
civil matters. 

No capitation or other direct tax is permitted to 
be laid unless in proportion to the decennial census 
or enumeration. No tax or duty shall be laid on 
articles exported from any State. Under this clause 
of the Constitution, it was held by the Supreme 
Court of the United States that the export duty 
on cotton, levied after the close of the Civil War, 
was unconstitutionally levied. 

No preference is permitted to be given by any 
regulation of commerce or revenue to the ports of 
one State over those of another ; nor are vessels 
bound to or from one State obliged to enter, clear, 
or pay duties in another. No money is permitted 
to be drawn from the Treasury except in conse- 
quence of appropriations made by law, and a regular 
statement of account of the receipts and expendi- 
tures of all public money is required to be published 
from time to time. 



52 COlSrSTITUTIONAL HISTORY. 

No title of nobility is permitted to be granted by 
tlie United States, and no person holding any office 
of profit or trust under its laws is allowed, with- 
out the consent of Congress, to accept any present, 
emolument, office, or title of any kind whatever 
from any king, prince, or foreign state. No State 
is permitted to enter into any treaty, alliance, or 
confederation ; to grant letters of marque or re- 
prisal, coin money or emit bills of credit, or make 
anything but gold and silver coin a tender in pay- 
ment of debts ; nor to pass any bill of attainder, 
ex post facto law, or law impairing the obligation 
of contracts, or grant any title of nobility. 

Under these restrictions upon the powers of the 
States, the question which has been most fre- 
quently before the Supreme Court of the United 
States for interpretation has been, " What is a law 
impairing the obligation of contracts, and what 
contracts are under the protection of the Constitu- 
tion of the United States ? " "While it is true that no 
one Legislature can tie the hands of a subsequent 
Legislature in matters strictly governmental, never- 
theless the Legislature of a State may pass a law 
which constitutes a contract with individuals or cor- 
porations binding upon the State. Such a law can- 
not be subsequently impaired, changed or modified 
to the detriment of the other contracting party 



THE LEGISLATIVE DEPARTMENT. 5'3 

without the consent of such contracting party or 
its assigns. Under this head it has been held by 
the Supreme Court of the United States, that the 
State, as to a particular property, may forever 
surrender its taxing power. In a leading case, 
decided as early as 1819, known as the Dartmouth 
College case, it was held that the charter granted 
by a State to a college was a contract which the 
Constitution of the United States would not per- 
mit to be impaired. 

As the result of this decision restricting the powers 
of States to alter and modify franchises granted by 
them, the States hastened to alter their respective 
Constitutions, so that it was thenceforth provided 
that all grants to corporations and all charters of 
corporations were subject to modification, alteration, 
and repeal at the will of the Legislature. This 
made the right of the Legislature to alter, modify, 
or repeal franchises granted to corporations, a part 
of the contract originally entered into with the 
corporation, and therefore the exercise of that 
right, however detrimental to the interests of the 
corporation, could not be said to be an impairment 
of the obligation of the contract embodied in its 
charter enacted subsequently to such constitutional 
amendment. When some of the Western States of 
the United States recently enacted laws by virtue 



54 CONSTITUTIONAL HISTOEY. 

of "wliicli commissioners were appointed to regulate 
the tariff of charges for freight and passengers to 
be charged by the railway corporations which had 
been chartered within the State, it was argued 
before the Supreme Court of the United States, by 
the bondholders and stockholders of the corpora- 
tion, that such legislation was an impairment of 
the original contract made with the corporation, 
and that under such contract the bondholders and 
stockholders acquired rights which could not be 
subsequently destroyed by a reassertion of sov- 
ereign power on the part of the State, which had 
been impliedly bargained away. In those States, 
however, the constitutions provided that grants 
by the Legislature of corporate franchises were 
subject to modification and repeal, and the Supreme 
Court held that the bond and stock holders were 
without remedy. It has also been held that the 
remedial provisions of law by which the creditor 
could collect from his debtor within the respective 
States by judgment and execution a claim due him, 
could not be so altered as substantially to impair 
his rights ; that the remedial legislation of the 
State under which contracts are made form part of 
the contract, and that to alter them to the detri- 
ment of the creditor was an impairment of his 
rights. On the other hand, it has been held by the 



THE LEGISLATIVE DEPAETMENT. 55 

Supreme Court of the United States, in construing 
this provision of the Constitution, that a municipal 
corporation, being a subordinate branch of the 
sovereignty of the State, having delegated powers 
only, is subject to have its charter modified, altered 
or repealed at the will of the Legislature, and that 
such legislation never partakes of the nature of a 
contract. This is likewise true of all officers of 
the States whose salaries are fixed by the State, 
and whose functions are prescribed by State laws. 

It has also been held that a State cannot by 
contract bargain away the essential powers of 
sovereignty. The State, therefore, cannot deprive 
itself of the right to appropriate private property 
to public use under the i30wer of eminent domain. 

Even exclusive privileges in the nature of legis- 
lative contracts are upheld. If the State, for 
instance, grants a privilege to a corporation to 
build a bridge, and couples such grant with an 
agreement not to charter a bridge within a certain 
given point, the State is held to such a contract 
after the bridge is built. On the other hand, 
whatever may apj)ropriately be deemed to fall 
within police powers cannot be contracted away. 
A man who buys a large stock of liquors under 
existing laws by which no license is required, 
cannot claim as against the State that his contract 



56 COirSTITUTIONAL HISTOET. 

is impaired because tlie State subsequently either 
restricts the sale or imposes conditions upon the 
business in which he is engaged. 

No State is permitted, without the consent of 
Congress, to lay any imposts or duties on imports 
or exports except such as may be absolutely neces- 
sary for executing its inspection laws, and the net 
produce of all duties and imposts laid by any State 
on imports or exports shall be for the use of the 
Treasury of the United States, and all such laws 
shall be subject to the revision and control of 
Congress. 

No State is permitted, without the consent of 
Congress, to lay any duty of tonnage, keep troops 
or ships of war in time of peace, enter into any 
agreement or contract with another State or with 
a foreign power, or to engage in war unless actually 
invaded or in such imminent danger as will not 
admit of delay. 

Under these provisions it has been held that an 
immigrant tax imposed by State law upon vessels 
entering the port of New York, of one dollar per 
head, collected from ships which brought the 
emigrants, and the purpose and object of the 
expenditure of which head-money was undoubt- 
edly of an extremely useful character to both 
emigrants and ship owners, was an unconsti- 



THE LEGISLATIVE DEPAETMENT. 67 

tutional impost. Tlie Emigration Commission, 
wliicli for many years in the City of New York 
performed a yery praiseworthy function in protect- 
ing the emigrants, from the moment of their land- 
ing until their departure from the City of New 
York, from frauds and swindles of every description 
which had theretofore been practiced upon them, 
providing hospitable accommodations for them, 
and for a year after their landing exercising some 
degree of guardianship in relation to their affairs, 
had its usefulness, after thirty years' duration, 
suddenly endangered by a decision of the Supreme 
Court of the United States adverse to the levy of 
the fund which supported it. 

Full faith and credit is required to be given in 
each State to the public acts, records, and judicial 
proceedings of every other State, and Congress is 
required by general laws to jDiescribe the manner 
in which such acts, records, and proceedings shall 
be proved, and the effect thereof. Under this 
section exemplification acts exist under which the 
acts and records of the several States are made 
evidence in the courts of law of other States. 

The citizens of each State are, under the Consti- 
tution, entitled to all the privileges and immunities 
of citizens in the several States. Under this clause 
special license laws, by which citizens of one State 



68 CONSTITUTIONAL HISTORY. 

were proliibited from seeking trade in otlier States 
except on taking out licenses which were not re- 
quired to be taken out by the citizens of the State^ 
were held to be unconstitutional. In some of the 
courts of the United States, however, it has been 
held that by the term citizens of each State who 
are entitled to such protection is meant natural 
citizens, and not artificial creations like corpora- 
tions, and that, therefore, a State is at liberty to 
impose terms upon corporations of other States 
as a condition of their doing business therein 
which they do not impose upon their own corpora- 
tions. 

A person charged in any State with treason, 
felony, or other crime, who shall flee from justice 
and be found in another State, shall, on demand 
of the Executive authority of the State from 
which he fled, be delivered up to be removed to 
the State having jurisdiction of the crime. This 
creates without treaty between the States a provi- 
sion for extradition by which all criminals are 
delivered by one State to another, so that such 
criminals can be tried within the State where the 
crime has been committed. 

The constitutional provision that no person 
held to service or labor in one State under the 
laws thereof, escaping into another, shall, in con- 



THE LEGISLATIVE DEPAETMENT. 59 

sequence of any law or regulation therein, be dis- 
charged from such service or labor, but shall be 
delivered up on claim of the party to whom such 
service or labor may be due, was mainly applicable 
to a condition of slavery, now happily passed away, 
when negro bondmen escaped from the Southern 
to the Northern States, and is now applicable only 
to cases of apprenticeship, for which it is not likely 
to be invoked. 

The United States is required to guarantee to 
every State in the Union a republican form of 
government, and to protect each of them against 
invasion, and on application of the Legislature, or 
of the Executive when the Legislature cannot be 
convened, against domestic violence. 

The provision requiring that full faith and credit 
shall be given in each State to the acts, etc., of 
every other State has for its object to prevent any 
such weakening of the bonds of the Federal Union 
as might follow from the States disregarding what 
was due to courtesy and comity when their respect- 
ive proceedings should come under consideration, 
and thus opening anew the controversies and ques- 
tions which, in the jurisdiction having properly and 
primarily the control of them, had once been 
determined. This clause relates only to judgments 
in civil actions, and not to judgments on criminal 



60 CONSTITUTIONAL HISTOET. 

prosecutions. In tlie latter respect the relation of 
the States to each other is wholly unaffected by the 
Constitution. 

The clause giving to the citizens of each State all 
the privileges and immunities of citizens in the 
several States, was not intended to give the laws in 
one State the slightest force in another State. It 
simply secures to the citizens of each State in every 
other State, not the laws or peculiar privileges 
which they may be entitled to in their own State, 
but such protection and benefit of the laws of every 
and any other State as are common to the citizens 
thereof in virtue of their being citizens. 

Under the section making it imperative upon the 
United States to guarantee to every State in the 
Union a republican form of government, a ques- 
tion was raised by the friends of woman's suffrage, 
before the Supreme Court of the United States, 
whether a government that excluded women from 
the suffrage was a republic, and the court held 
that it was. 

When the senators and representatives of a State 
are admitted to the council of the Union, the 
authority of the government under which they are 
appointed, as well as its republican character, is 
recognized by the proper constitutional authority. 

Congress has power to dispose of and make all 



THE LEGISLATIVE DEPARTMENT. 61 

needful rules and regulations respecting the terri- 
tory or other property belonging to the United 
States. Under this grant of power it has been held 
that Congress has the absolute right to prescribe 
the times, the conditions, and the mode of trans- 
ferring the public domain, or any part of it, and to 
designate the persons to whom the transfer shall 
be made ; that no State legislation can interfere 
with this right, or embarrass this exercise, and that 
no State law, whether by limitation or otherwise, 
can defeat the title of the United States to public 
lands within the limits of the State. 

By the sixth article of the Constitution, it is pro- 
vided that all debts contracted and engagements 
entered into before the adoption of the Constitution 
shall be as valid against the United States under 
the Constitution as under the Confederation. 

The second section provides that the Constitu- 
tion and the laws of the United States which shall 
be made in pursuance thereof, and all treaties 
made, or which shall be made, under the authority 
of the United States, shall be the supreme law of 
the land, and the judges in every State shall be 
bound thereby, anything in the constitution or 
laws of any State to the contrary notwithstanding. 
This supremacy gives to the United States Govern- 
ment, as contradistinguished from a State Govern- 



62 CONSTITUTIOITAL HISTOET. 

ment, its true sovereignty. Without it tlie Union 
could not maintain itself. There would have been 
a constant clashing of interests and of laws, and 
endless interpretations by the several State courts 
conflicting with each other as to the meaning 
of clauses of the Constitution of the United States. 
The declaration of supremacy of the Constitution 
of the United States and the laws thereunder, 
and the organization of the Supreme Court of the 
United States to determine all questions arising 
under the Constitution of the United States, or 
under a United States law, or when the Constitution 
of the United States, or the United States statutes 
are invoked or called into question, has created 
a homogeneity of decisions and interpretation 
Tfhich gives stability to and respect for its laws. 

A treaty is regarded as equivalent to an act of 
Congress, and has precisely the same validity. 
Congress has, therefore, the power by a subse- 
quent law to repeal clauses in a treaty if the sub- 
sequent enactments are in necessary conflict with 
the treaty. It is only the foreign governments, 
the compact with which has been violated, which 
have a ground of complaint for an infraction of the 
treaty, not the citizens of the United States. 

Although the Constitution thus places the United 
States government and its legislation above that 



THE LEGISLATIVE DEPAETMENT. 63 

of States, it nevertheless takes from tlie States 
their power to legislate in but three cases. First, 
where they are expressly prohibited from legisla- 
tion ; second, where exclusive power is expressly 
vested in the United States ; and third, where 
power vested in the United States is in its nature 
exclusive. 

It has now been expressly held by the Supreme 
Court of the United States, that v.'hen a State be- 
comes one of the United States, it enters into an 
indissoluble relation. The act which consummates 
its admission into the Union is something more 
than a compact ; it is the incorporation of a new 
member into the political body ; it is final. The 
union is as complete, as perpetual, and as indis- 
soluble as the union between the original States. 

The senators and representatives, and the 
members of the several State Legislatures, and all 
Executive and Judicial officers both of the United 
States and of the several States, are required by 
the Constitution to be bound by an oath or affirma- 
tion to support the Constitution ; but no religious 
test is ever required as a qualification for any 
office or public trust under the United States. 
Shortly after the war of the rebellion a new oath 
was prescribed by Congress to all office-holders, 
known as the " iron-clad " oath, by which the 



64 COlSrSTITUTIOlSrAL histoey. 

officer swore tliat lie had not aided or abetted the 
rebellion in any form or manner, and abjured the 
heresy of secession. This oath was, after solemn 
argument, declared to be an unconstitutional im- 
position as a test for office, as the Constitution 
required nothing further than an oath to support 
the Constitution. 

Shortly after the adoption of the Constitution, 
amendments were proposed, and by the States in 
due form ratified, which limited the powers of 
Congress, and the first eleven of which were in 
their nature a sort of Declaration of Eights of the 
people against arbitrary interference by the federal 
authority, and have hereinbefore been commented 
upon. 



CHAPTER III. 

THE EXECUTIVE POWEE. 

The Executive power of tlie Federal Government 
under the Constitution of the United States is 
vested in a President, who is to hold his office for 
the period of four years, and who, together with 
the Vice-President chosen for the same term, is 
elected by an Electoral College composed of electors 
of each State equal to the whole number of senators 
and representatives to which the State is at the time 
of such election entitled in Congress. The manner 
of the election of the members of the Electoral 
College is determinable by the Legislatures of the 
several States, with the limitation only that no 
senator or representative, or person holding an 
office of trust or profit under the United States, 
shall be appointed an elector. Under the Consti- 
tution, Congress was vested with power to deter- 
mine the time of choosing the electors and the day 
on which they shall give their votes ; such day, 

however, to be the same throughout the United 

65 



66 CONSTITtrTIOJSTAL HISTOEY. 

States. By an amendment to the Constitution, 
adopted in September, 1804, these electors were 
constituted into electoral colleges, to meet not as 
one body, but in their respective States, and to vote 
by ballot for President and Vice-President, one of 
whom at least shall not be an inhabitant of the 
same State with themselves. The ballots for Pres- 
ident shall be separate from those for Vice-Pres- 
ident, and after having made distinct lists of all 
persons voted for as President and of all persons 
voted for as Vice-President, and of the numbers of 
votes for each, the lists are required to be signed 
and certified and transmitted sealed to the seat of 
government of the United States, directed to the 
President of the Senate. The President of the 
Senate then shall, in the presence of the Senate 
and House of Representatives, open all the certi- 
ficates, and the votes shall then be counted. The 
person having the greatest number of votes for 
President shall be President, if such number be a 
majority of the whole number of electors appointed. 
If no person have such majority, then from the 
persons having the highest number of votes, not 
exceeding three, on the list thus voted for as Presi- 
dent, the House of Representatives shall immedi- 
ately choose by ballot the President. When that 
contingency arises the members of the House of 



THE EXECUTIVE POWEE. 67 

Kepresentatives cease to vote in their individual 
capacity, but vote by States, each, delegation or a 
majority of each delegation, casting the vote of the 
State. For this purpose the quorum to constitute 
the House of Representatives must consist of a 
member or members from two-thirds of the States, 
and a majority of all the States is necessary to a 
choice. 

In the event of the House of Representatives 
failing to choose a President, when the right of 
choice thus devolves upon them, before the fourth 
day of March next following the election, then the 
Vice-President, elected as hereinafter stated, shall 
act as President, as in case of the death or other 
constitutional disability of the President. 

The person having the greatest number of votes 
as Vice-President shall be the Vice-President, if 
such number be a majority of the whole number of 
electors. If no person has a majority, then from 
the two highest numbers on the list the Senate 
shall choose the Vice-President. A quorum for 
this purpose shall consist of two-thirds of the 
whole number of senators, and a majority of the 
whole number shall be necessary to a choice. No 
person is eligible for- the position of President 
unless he be a natural-born citizen or a citizen of 
the United States at the time of the adoption of 



68 COlSrSTITUTIOlSrAL histoet. 

tlie Constitution. He must be at least thirty-five 
years of age, and liave been fourteen years a resi- 
dent witiiiu the United States. 

The difference between the amendment and the 
Constitution as it originally stood, lies mainly in 
the fact that under the original Constitution the 
electors voted by ballot for two persons, and that 
they made a list of all the persons voted for and the 
number of votes for each, and the person having 
the highest number of votes, if such number was a 
majority of the whole number, became the Presi- 
dent, and the next person having the highest 
number of votes became the Vice-President. The 
idea which the framers of the Constitution enter- 
tained as to the manner in which these electoral 
colleges should exercise their function was that 
the people of each State would, in such manner as 
the Legislature directed, select the wisest and best 
men in the State to determine upon the fittest and 
best citizens for the offices of President and Vice- 
President respectively. Alexander Hamilton says 
in the Federalist, " It was desirable that the sense 
of the people should operate in the choice of the 
persons to whom so important a trust was to be 
confided. This end will be answered by commit- 
ting the right of making it not to any preestab- 
lished body, but to men chosen by the people for 



THE EXECUTIVE POWER. 69 

the special purpose at a particular juncture. It 
was equally desirable that the immediate election 
should be made by men most capable of analyzing 
qualities adapted to the station. ... A small 
number of persons selected by their fellow-citizens 
from the general mass would be most likely to 
possess the information and discernment necessary 
for so complicated an investigation." 

The end which was intended to be achieved by 
preventing the merger of the State electors in any 
general body, was to preserve State action to such a 
degree as to prevent State jealousy in the selection of 
the President, so that each State should feel that in 
the performance of so important a task as the 
selection of a President of the United States it pre- 
served its separate action ; secondly, by this sys- 
tem of double election to secure the best possible 
result as to persons to fill the important offices of 
President and Vice-President. 

At a very early period after the adoption of the 
Constitution the practical result of this method of 
selection was the very opposite from that which 
was intended by the framers of that instrument. 
National conventions of parties predetermined 
who the nominees of the party should be for such 
offices, and the election of electors under the forms 
of the Constitution at a subsequent period was 



70 CO]SrSTITUTIO]^AL IIISTOKY. 

merely a metliod wliereby to test the party strength, 
in the several States ; the electors to be voted for 
were likewise to be determined by a party conven- 
tion within the State ; and the majority in any 
State would elect either Federal or Republican 
electors, subsequently Whig or Democratic, and 
at a still later period Republican or Democratic 
electors, by a majority vote which determined 
which party should prevail in each particular 
State. The electors so elected became and are 
mere registering machines to cast the vote of the 
party in conformity with the nomination of the 
party ; and so strong are party ties in the United 
States, that there is no instance of any elector so 
elected disregarding his obligation to his party 
and exercising an independent choice for President 
of the Unitsd States. Therefore, after the Novem- 
ber election preceding the March when the Presi- 
dent of the United States is to be inaugurated, and 
considerably preceding the period of the meeting 
of the electoral colleges, the selection of electors 
is deemed the conclusion of the contest, and when 
such electors are elected, who is to become the 
President and Vice-President of the United States 
is immediately thereupon declared and known. 
The subsequent meeting of the electoral colleges 
on the first Wednesday in December follov/ing the 



THE EXECUTIVE POWEPw 71 

Tuesday after tlie first Monday of NoTember, 
when the election takes place, has degenerated 
into a mere matter of form, to which nobody pays 
anything more than a mere passing attention. The 
Kevised Statutes of the United States, sections 132- 
151, provide a uniform time for the choice of the 
electors, their number, the manner for filling vacan- 
cies, the certificates for the electors, the manner 
of making their returns, their compensation, a 
provision for the contingency of a new election in 
the event of the Presidency and Yice-Presidency 
both becoming vacant, and a provision that, in the 
event of the resignation of the President or Yice- 
President, it shall be in writing. 

The manner of counting the electoral vote has 
thus far been determined by joint resolution of 
the House of Representatives and the Senate. 

Immediately after the election of 1876, a contro- 
versy arose as to whether Mr. Tilden or Mr. Hayes 
had a clear majority of the electoral vote, and 
when the electoral colleges subsequently met in 
their respective States, two returns came from 
several States, and by the counting of either one 
of those electoral returns, or the rejection of both, 
the result of the election would be changed. The 
country was considerably disturbed by the then 
condition of affairs ; grave suspicions were enter- 



73 COIfSTITUTIONAL HISTOEY. 

tained that fraudulent electoral colleges were con- 
stituted by violently disregarding or rejecting votes 
wliicli should properly have been registered for 
the successful candidate, and the country was sup- 
posed by many to be upon the eve of another civil 
strife as to the Presidential succession, when an 
extra-judicial tribunal was organized, known as the 
Electoral Commission, composed of five Judges of 
the Supreme Court of the United States, five mem- 
bers of the House, and five Senators, from both 
parties, fifteen in all, whose determination upon the 
question was accepted as final. It is well known, that 
by a majority of one vote Mr. Hayes was declared 
elected, and duly inaugurated. This condition of 
affairs is unlikely ever to happen again, because the 
semi-territorial government to which some of the 
States which theretofore had been in rebellion 
were subjected, created a condition of affairs in 
such States favorable to frauds in election returns, 
and which made it doubtful for a time whether 
the nominal State government was really represent- 
ative of the people of the State, and the acts of 
the government officials were regarded with grave 
suspicion by both parties. 

The Revised Statutes also provide that the time 
for which a President and Vice-President shall be 
elected shall in all cases commence on the fourth 



THE EXECUTIVE POWEK. 73 

day of March, next succeeding the day on which 
the votes of the electors have been given, and that 
that term shall be four years ; that the compensa- 
tion of the President shall be $50,000 a year, and 
that of the Vice-President $10,000 ; the increase of 
the President's salary from the amount originally 
fixed by the act of 1793 at $25,000, having been 
made in March 1873. It also contains a provision 
authorizing the appointment, and limits the expen- 
diture of the President's official household. 

The functions of the President are defined in the 
second article of the Constitution. He is made 
Commander-in-chief of the army and navy of the 
United States, and of the militia of the several 
States when called into the actual service of the 
United States ; he has power to grant reprieves 
and pardons for offenses against the United States 
except in cases of impeachment only, and authorize 
him to require the opinion in writing of the prin- 
cipal officers in each of the Executive departments 
upon any subject relating to the duties of their 
respective offices. Power is given him, by and 
with the advice and consent of the Senate, to make 
treaties, provided two-thirds of the senators con- 
cur ; with him rests the nomination, and by and 
with the advice and consent of the Senate, the 

appointment of all ambassadors, all public minis- 
4 



74 COJS^STITUTIONAL HISTORY. 

ters and consuls. He also appoints, subject to confir- 
mation by Senate, tlie Judges of tlie Supreme Court 
and ail oclier officers of the United States the ap- 
pointment of whom is not otherwise provided for in 
the Constitution, and which may subsequently be 
established by law. Power is, however, reserved 
to Congress by law to vest the appointment of such 
inferior officers as it may think proper in the Presi- 
ent alone, in the courts of law, or in the heads of de- 
partments. The President is also empowered to fill 
all vacancies that may happen during the recess of 
the Senate, by granting commissions which shall 
expire at the end of the next session. He is re- 
quired from time to time to give to Congress infor- 
mation of the state of the Union and to recom- 
mend to its consideration such measures as he 
shall judge necessary and expedient, and he may 
on extraordinary occasions convene both Houses, 
or either of them, and in case of disagreement 
between them as to the time of adjournment he 
may adjourn them to such time as he may think 
proper. The President receives ambassadors, dip- 
lomatic agents and other public ministers, and is in 
general terms entrusted with the duty to see that 
the laws are faithfully executed and to grant com- 
missions to all the officers of the United States. 
Provision is made for the removal of both the 



THE EXECUTIVE POWEE. 75 

President and Vice-President and all civil officers 
of tlie United States on impeacliment for and con- 
viction of treason, bribery, or otlier high crimes 
and misdemeanors. He has also the high and im- 
portant prerogative to veto all legislation of Con- 
gress, which veto power is, however, subjected to 
the condition that in the event of his failure to 
approve a bill he shall return it with his objection 
to the House in which it shall have originated, 
which shall enter the objection at large upon its 
journal and proceed to reconsider the bill. If, 
after such reconsideration, two-thirds of the Houci'* 
shall agree to pass the bill, it shall be sent, together 
with the objections, to the other House, by which 
it shall likewise be reconsidered, and if approved 
by two-thirds of that House it shall become a law 
notwithstanding the Presidential veto. In all such 
cases the votes of the Houses are determined by 
yeas and nays, and the names of the persons voting 
for and against the bill are entered upon the 
journal of each House. Should the President fail 
to return the bill, or fail to sign it within ten days 
after it shall have been presented to him, it be- 
comes a law as though he had signed it, unless 
Congress by adjournment prevents its return, in 
which case it does not become a law without the 
President's signature. 



76 CONSTITUTIONAL HISTOEY. 

The power to make appointments to office by 
and witli tlie advice and consent of the Senate has, 
in practice, also largely deviated from the inten- 
tions of the draftsmen of the Constitution. By 
giving the President this power, it was intended to 
place upon him the responsibility of the nomina- 
tion, and to give the Senate the power to consider 
the fitness of the nomination by a canvass of the 
merits of the nominee, so as to act as a check upon 
the President's personal favoritism, nepotism, 
lack of information, or any other influence result- 
ing in an injudicious nomination. When, however, 
by the growth of the population and the enor- 
mous increase of federal offices consequent upon 
such growth, it became practically impossible for the 
President to arrive at a judicious conclusion as to 
the vast number of appointments which had to 
be made with each change of administration: under 
the pernicious doctrine that the prevailing party 
had a right to all the federal offices, a habit 
at first grew up of asking the advice of tlje sen- 
ators of the States in which the officers were to 
exercise their functions as to the proper nominee ; 
and this habit in time grew into a custom, which 
gave to the senators, as they insisted, the right 
to suggest to the President the names of the 
persons who were to exercise federal functions 



THE EXECUTIVE POWER. 77 

within the State from which they were commis- 
sioned. This became so established a rule of 
action on the part of the Presidents, that it became 
a matter of custom that when both senators of a 
State for which an appointment was made declined to 
confirm, the Senate deemed itself bound to reject the 
nomination. Therefore, during President Garfield's 
administration, the two senators from New York re- 
signed their seats in 1881, because what was termed 
" the courtesy of the Senate " had been violated in 
their cases, and the Collector of the Port of New 
York had been nominated without consultation, and 
in disregard of their wishes. An active movement 
is now proceeding in the United States to institute 
some system of civil service reform which will re- 
lieve the President from the necessity of making 
nominations to the Senate of a vast number of offi- 
cers who are periodically to be appointed under 
the " spoils " system. From the necessities of the 
situation the nominations of ineMcient men by the 
President is inevitable if he acts entirely upon his 
own judgment, in disregard and without previous 
consultation with the senators from the States. It 
is clearly impossible for him to know much of the 
persons thus nominated. He is, therefore, depend- 
ent upon the senators of the several States for sug- 
gestion and advice as to the nominations, and this 



78 CONSTITUTIOlSrAL HISTORY. 

dependence makes of tlie senators tlie heads of tlie 
great political machines of the States, and who 
thereby become, instead of the President, the foun- 
tains of federal honor and office within their respect- 
ive States. The civil service reform movement, there- 
fore, in the United States will, if successful, deal a 
blow at the " spoils " system, which makes each Pres- 
idential election a raffle for one hundred thousand 
offices, and the incumbents a vast horde of hungry 
office-holders, upon whom assessments for cam- 
paign funds can be levied by the party in power, 
which are promptly paid, because an incumbent 
knows full well that a refusal to contribute involves 
danger to him from his own party, and a change 
of administration bringing into power the opposi- 
tion party, his office must, almost as a matter of 
course, be vacated. This reform is also an at- 
tack upon the " courtesy of the Senate," which 
constitutes senators, instead of mere judges of 
proper or improp'fer nominations, a cabal to dic- 
tate nominations to the President, and in the 
event of a Presidential refusal, to decline con- 
firmation, irrespective of the merits of the nomi- 
nees. 

Each term of the Presidential office begins on the 
fourth day of March succeeding the election, and 
continues for a period of four years. The people of 



THE EXECUTIVE POWEE. 79 

the United States are at liberty to reelect the in- 
cumbent if they see fit : there is no constitutional 
restriction upon them in regard to the number 
of times he may be reelected. But as Wash- 
ington declined a nomination after his second 
term had expired, and pointed out, in so declining, 
the impropriety of repeated elections of the same 
officer, however popular, it has become part of the 
unwritten law of the United States that the Presi- 
dential term should not be extended beyond eight 
years. 

In case of the removal of the President from 
office, or of his death, resignation or inability to 
discharge its powers and duties, it is provided that 
the same shall devolve upon the Vice-President. 
And it is further provided that Congress may 
by law provide for the case of the removal, 
death, resignation or inability of both Presi- 
dent and Yice-President, and declare what officer 
shall then act as President, and such officer 
shall act accordingly until the disability be re- 
moved or a President be elected. Congress did 
provide, that in such a case the President of 
the Senate, or, if there be none, the Speaker 
of the House of Representatives for the time 
being, shall act as President until the disability is 
removed or a President elected ; and in the event 



80 CONSTITUTIOlSrAL HISTOKT. 

of the office of both President and Yice-President 
becoming vacant, the Secretary of State shall 
thereupon cause a notification to be made to the 
Executive of every State, and a new election shall 
thereupon be ordered. 

There is no provision for succession, in the event 
of there being no President of the Senate and no 
Speaker of the House of Bepresentatives. The 
death of President Garfield, at a time when there 
was neither President of the Senate nor Speaker 
of the Jlouse of Representatives, created a case 
when, in the event of the death of President 
Arthur before the Senate could be convened, no 
succession for the Presidency had been provided 
for. It is therefore clear that a further pro- 
vision must be made by law for such a possible 
contingency. 

Another question which arose during the pro- 
longed disability of President Garfield, inter- 
mediate between his wounding and his death, 
is one which has never yet received complete 
and satisfactory solution, and may create trouble 
unless anticipated by law. The Constitution 
provides that, in the event of a President- 
ial disability, the office of President shall 
devolve upon the Yice-President ; but there is 
no provision that such a devolution of the office 



THE EXECUTIVE POWER. 81 

shall be simply temporary in character, and that 
the Vice-President shall resign the same when 
the disability ceases to exist. The great per- 
sonal popularity of President Garfield, the hope 
of speedy recovery from his disability, and the 
widespread sympathy for his condition, made it 
inexpedient for the Vice-President to claim the 
office of President during this inability of the 
President to perform the duties of his office. But 
had the Vice-Presidency then been held by a per- 
son of less delicacy of sentiment and appreciation 
of popular opinion, the questions of who should 
determine when an inability arises, and for what 
term the Vice-President should hold office in the 
event of the disability being removed, might have 
become very serioas ones. These recent events, 
therefore, point to some further amendments of 
the Revised Statutes in relation to the Presidential 
office. 

The President is not subject in the exercise of 
his discretion to any judicial interference. The 
Supreme Court of the United States cannot com- 
pel his signature to any act, nor cause him to 
refrain from doing any act. There is but one way 
to reach an abuse of his authority, and that is by 
impeachment. There is but one example in the 

history of the United States of an impeachment of 

4* 



82 COITSTITUTIOIfrAL HISTOEY. 

tlie President, and tliat is tlie impeacliment of 
Andrew Johnson. 

Tlie House lias the sole power of impeachment. 
The Senate has the sole power to try impeach- 
ments. When sitting for that purpose, they are on 
oath or affirmation. When the President of the 
United States is tried the Chief Justice of the 
United States presides, and no conviction can be 
had without the concurrence of two-thirds of the 
members present. The English precedents are 
followed in the trial by impeachment, of the House 
appointing triers, and the impeached officer having 
counsel, either assigned to him or appointed by 
him, to try the cause in his behalf. 

Until 1868 the President had the power to 
create vacancies in the offices of heads of depart- 
ments and their first assistants, by demanding 
resignations and filling vacancies temporarily until 
the Senate's consent could be obtained. In con- 
sequence of the conflict which then existed be- 
tween the Legislative and Executive departments, 
eventually resulting in the impeachment of Presi- 
dent Johnson, an act was passed allowing suspen- 
sions but preventing the President from making re- 
movals, and from making temporary appointments, 
except in the cases of death, voluntary resignation, 
absence or sickness of the chief of any bureau. 



THE EXECUTIVE POWER. 83 

Under the implied powers which the President 
of the United States has received hj the general 
investiture of power as the chief Executive officer 
of the United States, may be enumerated the fol- 
lowing : As Commander-in-Chief of the Army and 
Navy of the United States, he has power to 
engage in hostilities, to institute a blockade, and 
to authorize captures and condemnations on the 
high seas. He has power to recognize a State 
Government in so far as to determine whether the 
government organized in a State is the duly con- 
stituted government of that State. He has power 
to protect aliens, as the care of our foreign rela- 
tions is committed to him ; to remit forfeitures 
under his pardoning power ; to order a nolle 
prosequi to be entered at any stage in a criminal 
proceeding in the name of the United States ; to 
order a new trial on the sentence of a court 
martial ; and in time of war to suspend the writ 
of habeas corpus in any district where for the time 
being the civil authorities are powerless. He is 
authorized by the Constitution to appoint heads of 
departments in his official household. This is 
likewise done by and with the advice and consent 
of the Senate. Tliis official household constitutes 
the Cabinet. The term Cabinet is not known to 
the Constitution of the United States, and has 



84 CONSTITUTIONAL HISTOKY. 

been adopted in American political parlance in 
imitation of tlie term for the chiefs of the depart- 
ments of the English Government. The Execu- 
tive officers, who are the more immediate advisers 
of the President, and in the selection of whom 
greater latitude is allowed by the Senate than in 
that of any other officer, are the Secretary of State, 
Secretary of Interior, Secretary of the Treasury, 
Secretary of War, Secretary of Navy, Postmaster 
General, and Attorney General. 

The Departments respectively under the direc- 
tion of the secretaries are known as the Depart- 
ment of State, the Department of "War, Department 
of the Treasury, Department of the Navy, Depart- 
ment of the Interior, the Post-office Department, 
and that under the Attorney General as the 
Department of Justice. There is also a Depart- 
ment of Agriculture, the head of which is, however, 
not a Cabinet officer. 

The several duties of the Department of State 
are by law defined to be correspondences, com- 
missions, and instructions to or with public minis- 
ters and consuls from the United States ; carrying 
on of negotiations with public ministers of foreign 
states or princes ; receiving memorials or other 
applications of foreign public ministers or other 
foreigners, and such other matters respecting 



THE EXECUTIVE POWEE. 85 

foreign affairs as the President of tlie United 
States sliall assign to the department, and tlie 
Secretary shall conduct the business of the depart- 
ment in such manner as the President shall 
direct. 

To the Secretary of State are also entrusted the 
custody and charge of the seal of the United States 
and the seal of the Department of State. It is his 
duty to promulgate the laws ; to publish the same ; to 
give notice of intended or proposed amendments to 
the Constitution of the United States ; to give notice 
of the adoption of constitutional amendments, and to 
promulgate the same ; to lay before Congress, within 
ten days after the commencement of each regular 
session, a statement of the returns of port collect- 
ors and of foreign agents, a report of the foreign reg- 
ulations of commerce and other commercial infor- 
mation, and of consular fees, and a synopsis of such 
of his communications to and from diplomatic of3&- 
cers as he may deem expedient to give for public 
information, a full list of all consular offices, &c. 

The Department of the Treasury is charged by 
law with the duty of adjusting all claims and 
demands whatsoever by the United States or 
against them ; to keep an account of all appropria- 
tions, receipts and expenditures, and make esti- 
mates of the expenses of all the departments of 



86 CONSTITUTIONAL HISTOEY. 

the Government ; to keep accounts of all receipts 
of internal revenue, and the accounts of all officers 
collecting revenue ; to keep an account of all expendi- 
tures for contingent purposes ; an account of all con- 
tingent expenditures for all governmental bureaus ; 
and an account of all the funded indebtedness. 
The Secretary signs all warrants on the Treasury 
of the United States, and is charged with the duty, 
from time to time to digest and prepare plans for 
the improvement and management of the revenue, 
and for the support of the public credit. It is his 
duty to prescribe the forms of keeping and render- 
ing all public accounts and making returns ; he is 
charged with the collection of all duties on imports 
and tonnage ; and all accounts of the expenditures 
of public moneys are to be settled within each fis- 
cal year, except where the distance of the places 
where such expenditure is to be made shall make 
further time necessary. 

It is his duty to interpret the revenue and 
custom laws of the country, and to make proper 
regulations not inconsistent with law in relation to 
such collection. He is charged with the duty of 
preparing proper statistics showing the amounts of 
goods that are imported and exported ; and also 
what regulations he has made in relation thereto. 
He is authorized to receive deposits of gold and 



THE EXECUTIVE POWEE. 87 

to give certificates therefor, and the coin and cur- 
rency of the country are placed under his supervi- 
sion. He is authorized to appoint disbursing 
agents ; to appoint persons who are authorized to 
recover moneys due to the United States, and to 
see to it that the revenue laws of the country are 
enforced. The Secretary of the Treasury is re- 
quired to make an annual report to Congress, 
which report shall contain, according to the pro- 
visions of law, an estimate of the public revenue 
and public expenditure for the fiscal year then cur- 
rent ; plans for improving and increasing the 
revenues from time to time, for the purpose of 
giving information to Congress, and adopting 
modes of raising moneys requisite to meet the 
public expenditures ; he is also to report all con- 
tracts for the supplies of the service which have 
been made by him under his direction during the 
year preceding, and also a statement of all expendi- 
tures of moneys appropriated for the discharge of 
miscellaneous claims not otherwise provided for, 
and paid by the Treasury ; he is to report to Con- 
gress his rules and regulations in relation to the 
appraisal of goods imported into the United 
States, and to make a report showing the value of 
such goods, and how much duty was collected ; a 
complete statement of the amounts collected from 



88 COISrSTITTJTIOJSrAL HISTOEY. 

seamen and the amounts expended for seamen ; tlie 
amount expended at eacli Custom-liouse and tlie 
number employed thereat. A Bureau of Statistics 
is created under his direction and control, which 
is required to collect statistics of the agricultural, 
manufacturing, and domestic trade ; of the currency 
and banks of the several States and Territories | 
and the Secretary is required to accompany hi^ 
annual statement of public expenditure with re- 
ports which may be made to him by the auditors 
charged with the examination of the accounts of 
the Department of War and the Department of 
Navy respectively, showing the application of 
moneys appropriated for those departments for the 
respective year. He is required to lay before 
Congress annually an abstract of the separate 
amounts of moneys received from internal duties 
or taxes in each of the respective States and 
Territories or election districts of the United 
States. He is also required to cause an annual 
report of statistics of commerce and navigation 
to be prepared by the chief of the Bureau of 
Statistics, to be likewise laid before Congress an- 
nually ; to report the number of persons employed 
in the Coast Survey and the business connected 
therewith, and the amount of compensation of every 
kind paid therefor. Every quarter he is required 



THE EXECUTIVE POWER. 89 

to publish in some newspaper at the seat of 
Government a statement of the whole receipts of 
such quarter, and the whole expenditures of such 
quarter ; also showing the amount to the credit of 
the Treasury, in the sub-Treasuries, in the differ- 
ent banks, in the Mint, and other depositories ; the 
amount for which drafts have been given, and 
those remaining unpaid ; and the balances remain- 
ing subject to draft ; likewise to note all changes 
made in the public depositories, and the reasons 
for such change. 

The law provides for the appointment of con- 
trollers, auditors and treasurers in the department, 
and specifies their duties. It also provides for the 
appointment of registers. Commissioners of Cus- 
toms, Commissioners of Internal Revenue, Con- 
troller of the Currency, and of the Bureau of 
Statistics, and Bureau of the Mint. The heads of 
these several departments are appointed by the 
President, by and with the advice and consent of 
the Senate, but the officers so appointed are placed 
under the direction of the Secretary of the 
Treasury. 

The Department of Justice, at the head of which 
stands the Attorney-General of the United States, 
consists, in addition to the Attorney-General, of an 
Assistant Attorney-General, a Solicitor-General, a 



90 CONSTITIJTIOlSrAL HISTOET. 

Solicitor of tlie Treasury, an Assistant Solicitor 
of the Treasury, a Solicitor of Internal Eevenue, 
a Naval Solicitor, and Examiner of Claims, all of 
•wMch are appointed by the President, but are 
under the direction of the Attorney-General. The 
Attorney-General is required to give his advice 
and opinion upon all questions whenever required 
by the President. No public money is to be ex- 
pended upon any site or land purchased by the 
United States for any purpose until the written 
opinion of the Attorney-General is had in favor of 
the validity of the title, and the District Attorneys 
of the United States in the various judicial dis- 
tricts of the United States are required, upon the 
application of the Attorney-General, to furnish any 
assistance or information in their power in rela- 
tion to the title of public property lying within 
their respective districts. 

All the Executive Departments are author- 
ized to ask for advice from the Attorney-Gen- 
eral on any question of law upon which the 
heads of the departments may have doubt. The 
Attorney-General and Solicitor-General are re- 
quired to argue suits and writs of error and 
appeals to the Supreme Court of the United States, 
and suits in the Court of Claims in vfhich the 
United States is interested. And the officers of 



THE EXECUTIVE POWER. 91 

tlie Department of Justice, under tlie direction of 
tlie Attorney-General, are required to give all 
opinions and render all services requiring skill of 
persons learned in tlie law, necessary to enable the 
President and heads of Departments, heads of 
Bureaus, and other officers in the departments to 
discharge their respective duties. They are re- 
quired to procure proper evidence for, and to con- 
duct and prosecute all suits and proceedings in 
the Supreme Court and Court of Claims, in which 
any officer of the United States is a party or may 
be interested. General superintendence is given 
to the Attorney-General over all the United States 
attorneys and marshals of all districts in the 
United States as to the manner of the discharge 
of their respective duties. The Attorney-General 
is authorized to employ counsel in such cases as 
in his discretion may require additional counsel. 

The Solicitor of the Treasury has a general 
supervision over the bonds and actions of all per- 
sons charged with the collection of taxes and in- 
ternal duties. He has power to take cognizance 
of, and to take measures to prevent and detect all 
frauds or attempted frauds upon the revenue, and 
to make such rules in relation to the collection of 
the revenue as in his judgment, and with the ap- 
probation of the Attorney-General, he may see fit. 



93 COJS-STITUTIONAL HISTORY. 

The Attorney-General is required annually to 
print an edition of such opinions as may be 
deemed by him worthy of permanent record ; and 
to make annually a report ot the conduct of his 
office and of his subordinates, to Congress. 

The Post-office Department consists of the Post- 
master-General and three Assistant Postmasters- 
General, appointed by the President. It is the 
duty of the Postmaster-General to establish and 
discontinue post-offices ; to prescribe the manner of 
keeping accounts and rendering returns ; to make 
contracts for postal service ; by and with the con- 
sent of the President, to negotiate postal treaties 
and conventions ; reduce or increase the rate of 
postage or mail matter conveyed between the 
United States and foreign countries ; make rules 
and regulations as to fines, penalties, forfeitures 
or disabilities in relation to his department. He 
is required to make an annual report to Congress 
of all contracts made for carrying the mail within 
the preceding year ; the prices paid, etc., of all 
land and water mails established or ordered within 
the preceding year; the names of persons em- 
ployed to transport it, price paid etc., and all 
allowances made to contractors within the preced- 
ing year in addition to the sum originally stipu- 
lated in their respective contracts, and the reasons 



THE EXECUTIVE POWEE. 93 

for the same; a report of all the curtailment of 
expenses effected within the preceding year; a 
report of the revenues of the department for the 
preceding year, and the amount actually paid for 
carrying the mail, and comparing the same with 
preceding years. The Postmaster is required to 
report to Congress all contracts made for the car- 
riage of mail matter, and to give a detailed account 
of the postal business and agencies in foreign 
countries, which report is first to be submitted to 
the Secretary of the Treasury, and then printed 
and submitted to Congress as part of the Treasur- 
er's Report. 

The Department of the Navy consists of the 
Secretary of the Navy and Assistant Secretary of 
the Navy and a large executive force. The War 
Department consists of the Secretary of War and 
a large executive force. It is unnecessary to 
enter into detail as to the duties and functions of 
the Naval and War Departments, as the terms in- 
dicate what their functions are. 

The Department of the Interior is a much more 
complicated one. The Secretary of the Interior 
has an Assistant Secretary, appointed by the 
President. The Secretary of the Interior is 
charged with the supervision of public business 
relating to the following subjects : 1. The census ; 



94 COlSrSTITUTIONAL HISTOET. 

therefore a Census Bureau -witli its staff of officers 
is under his direction and control. 2. The public 
lands, including mines. 3. Indians. 4 All pen- 
sions and bounty lands. 5. All patents for inven- 
tions. 6. The custody and distribution of all 
publications. 7. The Education Department. 8. 
The Government Hospital for the Insane. 9. The 
Columbia Asylum for the Deaf and Dumb. Under 
him, therefore, there is a Commissioner of the 
Land Office ; a Commissioner of Indian Affairs ; a 
Commissioner of Pensions ; a Commissioner of 
Patents, and Assistant Commissioners; Superin- 
tendent of Public Documents, a Bureau of Rail- 
roads, Superintendent of Census, Director of Geo- 
logical Surveys, and Commissioner of Education. 
A supplemental Executive Department was 
created in 1862, independent of the other depart- 
ments, but the head of which is not a member of 
the cabinet, called the Department of Agriculture. 
This commissioner is charged with the duty of 
procuring and preserving all information concern- 
ing agriculture which can be obtained by means of 
books and correspondence, and by practical and 
scientific experiments ; to collect new and valua- 
ble seeds and plants, and to test by cultivation the 
value of such of them as may require such tests, 
and to propagate such as may be worthy of 



THE EXECUTIVE POWEE. 95 

propagation, and to distribute tliem among ag- 
riculturists. This purchase and distribution of 
seeds by the department is confined to rare and 
uncommon ones, or such as can be made more 
profitable by frequent changes from one part of 
the country to another, and the purchase for propa- 
gation of trees, plants, shrubs, vines, and cuttings, 
are confined to those which are adapted to general 
cultivation, and to promote the interests of agri- 
culture and horticulture throughout the United 
States. 



CHAPTER IV. 



THE JUDICIAL POWER. 



One of tlie main reasons why the Articles of 
Confederation failed securely to establish na- 
tional entity, was because no proper judicial 
organization existed thereunder to enforce the 
law ; Congress was made the tribunal of last resort 
in controversies between the States, and the only 
power given to Congress to create judicial tribunals 
was to create prize courts. 

Alexander Hamilton, in treating of the Judiciary 
department of the United States and the necessity 
for its creation, with reference to the power to 
adjudge acts void which are passed by a coordi- 
nate department — the Legislature — says : " The 
complete independence of the courts of justice is 
peculiarly essential in a limited Constitution. By 
a limited Constitution I understand one which 
contains certain specified exceptions to legislative 
authority, such for instance, as that it shall pass 

no bill of attainder, no ex post facto law and the 
96 



THE JUDICIAL POWEE. • 97 

like. Limitations of this kind can be preserved in 
practice in no other way than through the medium 
of the courts of justice, whose duty it must be to 
declare all acts contrary to the manifest tenor of 
the Constitution void; without this all the reser- 
vations of particular rights or privileges would 
amount to nothing. * * * It is urged that the 
authority which can declare the acts of another 
void must necessarily be superior to the one whose 
acts may be declared void. As this doctrine is of 
great importance in all the American Constitu- 
tions, a brief discussion of the ground on which 
it rests cannot be unacceptable." 

" There is no position which depends on clearer 
principles than that every act of delegated 
authority contrary to the tenor of the commission 
under which it is exercised is void. No legisla- 
tive act, therefore, contrary to the Constitution 
can be valid. To deny this would be to affirm 
that the deputy is greater than his principal ; that 
the servant is above his master ; that the represen- 
tatives of the people are superior to the people 
themselves ; that men acting by virtue of powers 
may do not only what their jDowers do not author- 
ize, but what they forbid. If it be said that the 
legislative body are themselves the constitutional 
judges of their own powers, and that the construe- 



98 CONSTITUTIONAL HISTOET. 

tion that they put upon them is conclusive upon the 
other departments, it may be answered, that this 
cannot be the natural presumption where it is not 
to be collected from any particular provision in 
the Constitution. It is not otherwise to be sup- 
posed that the Constitution could intend to enable 
the representatives of the people to substitute their 
will to that of their constituents. It is far more 
rational to suppose that the courts were designed 
to be an intermediate body between the people and 
the Legislature, in order, among other things, to 
keep the latter within the limits assigned to their 
authority. The interpretation of the laws is the 
proper and peculiar province of the courts. A 
Constitution is in fact, and must be regarded by 
the judges as a fundamental law. It must, there- 
fore, belong to them to ascertain its meaning as 
well as the meaning of any particular act proceed- 
ing from the legislative body. If there should 
happen to be an irreconcilable variance between 
the two, that which has the superior obligation 
and validity ought to be preferred. In other words, 
the Constitution ought to be preferred to the 
statute, the intention of the people to the inten- 
tion of their agents. Nor does the conclusion by 
any means suppose a superiority of the judicial 
to the legislative power. It only supposes that the 



THE JUDICIAL POWER. 99 

power of the people is superior to botli, and that 
where the will of the Legislature declared in its 
statutes stands in opposition to the will of the 
people declared in the Constitution, the judges 
ought to be governed by the latter rather than by 
the former ; they ought to regulate their decisions 
by the fundamental laws rather than by those 
which are not fundamental. * * * It can be of 
no Aveight to say that the courts on the pretence 
of a repugnancy may substitute their own pleasure 
to the constitutional intentions of the Legislature. 
This might as well happen in the case of two con- 
tradictory statutes, or it might as well happen in 
every adjudication upon any single statute. The 
courts must declare the sense of the law, and if 
they should be disposed to exercise will instead of 
judgment, the consequence would equally be the 
substitution of their pleasure to that of the legis- 
lative body. The observation, if it proved anything, 
would prove that there ought to be no judges dis- 
tinct from that body. If, then, the courts of justice 
are to be considered as the bulwarks of a limited 
constitution against legislative encroachments, 
this consideration will afford a strong argument 
for the permanent tenure of judicial officers, since 
nothing will contribute so much as this to that in- 
dependent spirit in the judges which must be 



100 CONSTITUTIONAL HISTOEY. 

essential to tlie faithful performance of so arduous 
a duty." — Federalist No. 78. 

I have cited the foregoing passage at length be- 
cause vesting courts with power to declare the acts 
of the highest law-making power unconstitutional 
would, at first blush, seem to be dangerous. In 
the mother country, from which the United States 
derived its institutions, such a power is not 
given to the courts. Violent constructions of the 
meaning of words employed by the Legislature are 
sometimes resorted to, on the theory that Parlia- 
ment could not have intended to mean anything 
repugnant to natural justice ; yet no British Court 
ever declared an act of Parliament void on the 
ground of a violation of the English Constitution. 

But for the fact that there is a check upon the 
judges to prevent them from wantonly vetoing leg- 
islation by declaring it to be unconstitutional, the 
judiciary would be the supreme governing power of 
the land, and that as there is no power superior to 
the judicial one, to revise their errors of judgment or 
to make inquiry whether they have reasonably exer- 
cised that power or not, it is within the power of the 
court of last resort of the United States to declare 
every act unconstitutional, however violent such a 
declaration may be and thus nullify all legislation. 
There is, however, in the Constitution of the United 



THE JUDICIAL POWER. 101 

States a check upon this power, lodged in the leg- 
islative body itself. The power to impeach and to 
remove for any cause appearing sufficient to two- 
thirds of the Senate upon presentment hj the 
House, makes all the members of the Supreme 
Court of the United States subject to removal if 
they are guilty of a gross violation of the judicial 
discretion lodged by the Constitution in them. 
And as the members of the Senate, who are 
charged with the duty of trying the impeachment 
are responsible to their States, and the members 
of the House who make the jDresentment are in 
their turn responsible to their constitutents — the 
people of the States — (by this system of checks 
and balances thus created by the Constitution for 
the purpose of preserving each department within 
its proper sphere) are finally called upon to deter- 
mine whether their servants have acted within the 
limits of the powers respectively delegated to 
them. 

The reasoning of Hamilton seems to be conclu- 
sive — that no written Constitution deputing limited 
powers can, by any possibility, be enforced against 
the deputed agents exercising for the time such 
powers, unless a court of judges, sitting for life or 
during good behavior, is interposed between the 
people and their legislative agents, clothed with 



102 CONSTITUTIOlSrAL HISTORY. 

tlie power to declare a. final opinion on the consti- 
tutionality of tlie statutes emanating from the 
Legislature. The Constitution of the United 
States does not stand alone in that particular. All 
the State Constitutions grant to the State Courts 
of last resort the power finally to declare upon 
the constitutionality of State legislation, and every 
statute, therefore, passed in the United States may 
be called into question, as to the constitutional 
power to enact the same, either before a State or 
federal court, or before both. 

The judicial power of the United States is 
lodged under the Constitution in a Supreme Court 
and such inferior tribunals as Congress may from 
time to time ordain and establish. 

The judges of the Supreme Court and inferior 
courts hold their offices during good behavior, and 
they are entitled to receive a compensation which, 
during their continuance in office, is not permitted 
to be diminished. The judicial power conferred 
upon the Supreme Court extends to all cases in 
law and in equity arising under the Constitution, 
the laws of the United States and treaties made, or 
which shall be made, under their authority ; to all 
cases affecting ambassadors and other public min- 
isters and consuls; to all cases of admiralty and mari- 
time jurisdiction to which the United States shall 



THE JUDICIAL POWEE. , 103 

be a party ; to controversies between two or more 
States ; between a State and citizens of another 
State ; between citizens of different States ; be- 
tween citizens of the same State claiming 
lands under grants of different States ; and 
between a State or the citizens thereof and foreign 
States, citizens or subjects. By the eleventh 
amendment to the. Constitution, however, it was 
enacted that the judicial power of the United 
States v/as not to be construed to extend to any 
suits in law or in equity, commenced or prosecuted 
against one of the States by citizens of another 
State, or by citizens or subjects of any foreign 
State. 

It is further provided in the Constitution, that 
in all cases affecting ambassadors and other public 
ministers, consuls, and cases in which a State shall 
be a party, the Supreme Court shall have original 
jurisdiction. In all the other cases before mentioned, 
the Supreme Court has appellate jurisdiction, both 
as to law and fact, with such restrictions and regu- 
lations as Congress may make. As the Constitu- 
tion itself declared wherein the original jurisdic- 
tion of the Supreme Court shall consist, Congress 
thereafter became powerless to assign original 
jurisdiction to that court in cases other than 
thoje specified in the article. A State may bring 



104 CONSTITUTIOJSTAlJ HISTOET. 

an original suit in the Supreme Court against a 
citizen of another State, but not against one of her 
own citizens. 

Although the Constitution vests the Supreme 
Court with original jurisdiction in certain cases 
mentioned, which may not be enlarged by Con- 
gress, Congress, nevertheless, may lodge concur- 
rent Jurisdiction in some of the inferior courts 
created by it under the powers conferred by the 
Constitution. 

Under the Constitution, the States are prohibited 
from doing a number of things, some of which are 
incompatible with the interests of the Union, 
There would be no possibility to keep the States 
within the limitations thus imposed if the States 
themselves were to be the judges of the extent of 
such prohibition, or its application to a particular 
case ; and, therefore, with the Supreme Court of 
the United States is necessarily lodged the power 
to correct and prevent infractions thereof. " This 
body," says Hamilton, " must have either a direct 
negative on the State laws, or authority in the 
federal courts to over-rule such as might be a 
manifest contravention of the articles of the Union. 
There is no third course that I can imagine. * * * 
Controversies between the nation and its members 
or citizens can only be properly referred to national 



THE JUDICIAL POWEE. 105 

tribunals. Any other plan would be contrary to 
reason, to precedent, and decorum." 

"The peace of the whole," again says Hamilton, 
" ought not to be left at the disposal of a part. 
The Union will undoubtedly be answerable to 
foreign powers for the conduct of its members, and 
the responsibility for an injury ought ever to be 
accompanied with the faculty of preventing it. 
Therefore, the federal judiciary ought to have cog- 
nizance of pJl causes in which the citizens of 
other countries are concerned. This is not less 
essential to the preservation of public faith than 
to the security of public tranquility. The power 
of determining causes between two States, between 
one State and the citizens of another, and between 
the citizens of different States, is perhaps not less 
essential to the peace of the Union than that which 
has just been examined. The institution of the 
Imperial Chamber by Maximillian, towards the 
close of the fifteenth century, did much to prevent 
the dissensions and private wars which had there- 
tofore harried Germany. It may be esteemed 
a basis of the Union, that the citizens of 
each State shall be entitled to all the privileges 
and immunities of the citizens of the several 
States, and if it be a just principle that every 

Government ought to possess the means of execut- 
5* 



106 CONSTITUTIONAL HISTORY. 

ing its own provisions, by its own antliority, it will 
follow, that in order to the inviolable maintenance 
of tliat equality of privileges and immunities to 
which the citizens of the Union will be entitled 
the national judiciary ought to preside in all cases 
in which one State or its citizens are opposed to 
another State or its citizens." 

The jurisdiction conferred in the case of treaties 
is so necessary a one that it is almost too clear for 
argument. The cognizance of maritime causes is 
a necessary part of the power of the National 
Government as a matter of public peace. It is the 
only jurisdiction that was conferred by the Articles 
of Confederation on national courts. 

The only case where citizens of the same State 
can go into the courts of the United States, is 
Tfhere they claim lands under grants of different 
States. 

Shortly after the adoption of the Constitution, 
the Judiciary Act was passed, constituting national 
tribunals inferior to the Supreme Court, the powers 
and duties of which, under judicial interpretation, 
we propose now to examine. 

When the question to which the judicial power 
of the Federal Government extends under the 
Constitution forms an ingredient of the original 
cause, it is in the power of Congress to give the 



THE JUDICIAL POWEE. 107 

federal courts jurisdiction of that cause, although 
other questions of fact or law may be involved in it. 
The other questions may be decided as incidental 
to that which gives the jurisdiction. Cases may 
arise under the laws of the United States by im- 
plication, so that they come under the judicial 
power of the Federal Government. It is not unus- 
ual for a legislative act to involve consequences 
not expressed. Where a defendant seeks protec- 
tion of thv? laws of the United States or under the 
Constitution in any of the States, it is a case aris- 
ing under the law, and gives to the United States 
courts jui'isdiction. 

The Constitution not only confers admiralty 
jurisdiction upon the courts of the United States, 
but as it superadds the word maritime, every latent 
doubt is removed thereby as to the extent of the 
jurisdiction, and it has, therefore, been held to in- 
clude all maritime contracts, torts and injuries 
which are, in the understanding of the common 
law as well as of the admiralty law, maritime 
causes. The grant, therefore, of admiralty power 
to the federal courts was not intended to be limited 
or interpreted by the theory of cases of admiralty 
jurisdiction in England when the Constitution was 
adopted. The admiralty, therefore, has jurisdic- 
tion over maritime contracts, although the power 



108 COlSrSTITUTlOlS^AL HISTOEY. 

contemplated begins and ends in the State, and is 
prescribed only in waters within tlie State ; and 
the admiralty jurisdiction extends to torts com- 
mitted on the navigable waters although they are 
within the body of a county within the State. 

As to the original jurisdiction of the Supreme 
Court of the United States, Congress cannot add 
to nor diminish that jurisdiction ; but in the crea- 
tion of the inferior federal courts, it may so regulate 
the jurisdiction conferred by the Constitution as to 
deprive one court of it, substitute another court, 
or change the courts upon which jurisdiction has 
been conferred at its own will ; and of course it 
can modify the practice of the court in any other 
respect that it may deem conducive to the admin- 
istration of justice. 

It is not competent for the States, by any local 
legislation, to enlarge or limit, or narrow the ad- 
miralty and maritime jurisdiction of the federal 
courts. In exercising this jurisdiction they are 
exclusively governed by the legislation of Congress, 
and in the absence thereof, by the general princi- 
ples of the maritime law. The State Legislatures 
have no right to prescribe the rule by which the 
federal courts shall act, nor the jurisprudence 
which they shall administer. If any other doc- 
trine were established it would amount to a com- 



THE JUDICIAL POWEE. 109 

plete surrender of the jurisdiction of the federal 
courts, to the fluctuating policy and legislation of 
the States. If the States have a right to pre- 
scribe any rule, they have a right to prescribe 
all rules, to limit, control, or bar suits in national 
courts. 

In an early case before the Supreme Court of the 
United States it was claimed that an Indian nation 
with which the Government had entered into en- 
gagements analogous to treaties, was a foreign 
state in the sense of the Constitution; but this 
claim was negatived by the court, and the exist- 
ence of such tribe as an independent power denied. 
The Indians in that respect form an anomaly in 
American jurisprudence, because they are neither 
citizens nor aliens while in their tribal condition. 
They are under the exclusive jurisdiction of a sub- 
department of the Interior Department of United 
States government known as the Indian Depart- 
ment, but during a brief period they were under 
the jurisdiction of the War Department. 

There are many cases where the State courts 
have concurrent jurisdiction with the United States 
courts, such as where the United States sues, where 
a State sues a citizen of another State, where 'a 
State sues an alien, where a citizen of one State 
sues another State, where a citizen sues an alien 



110 CONSTITUTIONAL HISTOET. 

and where an alien sues a citizen. In all such 
cases, however, it is provided by United States 
statute, that a removal can be had of such causes 
either before or after issue joined and before trial, 
into the United States courts by either party to 
the record. 

The reader's attention has already been drav/n 
to the Amendment of the Constitution which pro- 
vides that a State cannot be made a party at the 
suit of a citizen of its own State or of another State, 
adopted for the purpose of guarding against the 
impairment of the dignity of the State by being 
constantly subjected at the instance of any private 
individual to being dragged before the Supreme 
Court of the United States as a delinquent. Al- 
though this provision guards a State, as such, from 
being made a party, nevertheless the construction 
given by the United States courts to this clause, 
allows State officers, upon v/hom rests the duty to 
perform an act under the direction either of the 
Constitution of the United States or a statutory 
law of the United States, to be subjected to man- 
datory proceedings on the part of the Supreme 
Court of the United States, compelling them to con- 
form to judgments and decrees, and to perform 
or not to perform a particular act. 

At the time of the formation of the Constitution 



THE JUDICIAL POWEE. Ill 

considerable criticism was made upon the clause 
whicli secured a jury trial in criminal cases alone ; 
but as the common law of England was part of the 
heritage of the people of the United States, and as 
a large part of the system of jurisprudence which 
was thus transferred to the American people from 
England was that which was administered by 
chancellors without a jury, it was deemed wise 
not to interfere with the body of law wherein jury 
trials were unknown, for which no substitute could 
readily be found. Besides, as the Constitution of 
the United States was mainly intended to guard 
against tyranny, and as the tyrannical powers of 
government would be exercised not in private 
personal claims cognisable in equity courts, but 
through the criminal courts, and might be attempted 
to be exercised by bills of attainder passed by pliant 
legislative bodies, the provision preventing the pas- 
sage of ex post facto laws and bills of attainder and 
securing to every man the right to a trial by jury 
at the place where the alleged crime was supposed 
to be committed, was a sufficient safeguard against 
the tyranny of executive and legislative power. A 
statute was therefore held to be unconstitutional 
which provided that a party might be tried by the 
court without a jury on a charge of libel, although 
that statute gave him the right to appeal to another 



113 CO]SrSTITUTIOE"AL HISTOEY. 

court where the charge must be tried by a jury, be- 
cause the accused was entitled in the first instance 
to be tried by a jury without having his cause prej- 
udiced by a conviction by a court prior to such 
trial ; and although the statute gave the prisoner 
power to determine how he should be tried, yet as 
the constitutional provision was intended not for 
the protection of one individual j but for the pro- 
tection of the community, such a waiver of his 
rights was not conclusive : the courts would look 
at the record alone, and if the trial was unconsti- 
tutional the individual waiver made no difference as 
to the illegality of the conviction. 

No provision in the United States Constitution 
is perhaps more conservative of individual liberty, 
or more carefully worded in that particular than 
that which relates to treason. No case of con- 
structive treason can arise under the plain provision 
of the Constitution in that particular. No con- 
spiracy against the Government, however clear, un- 
less it consists of the actual levying of war, can be 
construed to be treason. Even resistance to the 
execution of the laws of the United States accom- 
panied with force, if such resistance is for a private 
purpose only, is not treason. To constitute the 
offence of treason, the resistance must be of a public 
nature. 



THE JUDICIAL POWEE. 113 

Under the section which gives to the citizen of 
each State the privileges, and immunities of the 
citizens of the several States, it has been held that 
a citizen of one State cannot claim the right to vote 
for an election to office in another State in which 
he is not a citizen under the special laws of that 
State. Each State has the right to declare who its 
citizens in a political sense shall be. The meaning 
of these rights of a citizen of one State in other 
States has been limited to the right to hold and 
dispose of real and personal property, to trade, and 
to transact all the private affairs of life ; but it is 
held that it was not intended by the Constitution 
to obliterate the privileges and immunities which 
arise from citizenship in the several States, nor to 
interfere With the rights of the States to pass such 
laws as they may see fit by which they can properly 
determine whom to admit to the right of suffrage, 
the time of residence within the State necessary to 
constitute citizenship, nor to limit the power of the 
States to subject their citizens, and therefore the 
citizens of all other States, to certain regulations 
and limitations as to political rights arising from 
property or residence considerations. Nor can a 
citizen of one State claim immunity from the laws 
to which the State subjects its own citizens. The 
main purpose of this provision is to prevent dis- 



114 COE^STITUTIOWAL HISTOEY. 

criminating legislation against citizens of one by 
other States, and to secure for them tlie equal 
protection of tlie laws of all States. Nor can a 
citizen claim protection of the laws of his own State 
in another State, because were he permitted to do 
so, his rights would be superior in the State of 
which he is not a citizen to those which he has 
wherein he is a citizen. Another limitation exists, 
that the word citizen means citizen of the United 
States. If either of the States recognized certain 
persons as citizens who are not so recognized by 
the United States, such citizens would not have 
the immunities and privileges accorded to the 
citizens of the United States. If a State were to 
recognize as citizens of the State women or minors 
who are not admitted to the rights of citizenship 
in the United States, they could not claim this 
general citizenship by reason of the special law 
creating them citizens within the domain of a single 
State. 

Under the clause of the Constitution of the 
United States which gives Congress the power to 
dispose of and make all needful rules and regula- 
tions respecting the territory belonging to the 
United States, a considerable body of legislation 
and of judicial decisions has sprung up in relation 
to the public lands of the country.' At the time of 



THE JUDICIAL POWER, 115 

the adoption of the Constitution a vast body of 
land was ceded by several States to the general 
Government. By the Louisiana and Florida pur- 
chases, the Texas acquisitions, andsubsequently by 
the purchases from Mexico under the Guadalupe 
Hidalgo treaty of a large proportion of the present 
western coast of the United States, and finally 
by the purchase of Alaska, an enormous territory, 
covering three and a half million square miles, came 
into the possesion of the United States to act with 
as it saw fit. With this domain the Government 
dealt ; first, in selecting vast tracts for the Indian 
tribes ; secondly, in reserving miners' rights ; 
thirdly, in providing homesteads for actual set- 
tlers ; fourthly, in granting concessions to soldiers 
in the Indian, Mexican, and Civil wars by way of 
bounty ; fifthly, in gifts to States for educational 
and other purposes ; sixthly, in making enormous 
grants to railway corporations as inducements to 
build the trans-continental lines which connect the 
Pacific rnth the Atlantic coasts ; seventhly, by the 
sale of the public lands as a source of revenue. 
Under the homestead laws any person may select 
one hundred and sixty acres, and after a specified 
time, if he erects thereon a house and actually tills 
the soil and gives notice of his intention to occupy 
the same, he can for a mere nominal payment cov- 



116 COJTSTITUTIOjSTAL histoey. 

ering expense of issue of patent, etc., become the 
owner of tlie land lie liad in possession. 

Under tlie Florida, Louisiana, and Mexican 
purchases the United States was called upon to 
deal with grants of great bodies of land which had 
been by the Spanish and French Crowns and 
Mexican Government ceded to individual s, colonies 
and adventurers during the prior occupation of 
that territory by these foreign governments. 
Under the promise given by the treaties by which 
the purchases were made, that full faith and credit 
would be given to titles theretofore acquired in 
good faith, the United States has issued patents 
for vast tracts of those territories to individuals 
whose claims of title antedated the cession to the 
United States. An attempt has been made in 
recent years to limit the rights acquired under 
such patent to eleven square leagues, but such 
efforts have been rejected by Congress, on the 
ground, that however desirable it may be to pre- 
vent the public domain from being monopolized, 
good faith demanded and the treaties compelled 
respect for such pr,ior titles by immunity from the 
claim of the United States to lands thus separated 
from the public domain. 

Under the provision of the Constitution which 
gives to the Constitution of the United States and 



THE JUDICIAL POWEE. 117 

tlie laws of Congress supreme power, only such 
power is meant which has been specifically or by 
necessary implication conferred upon Congress by 
the Constitution. The States are sovereign and 
independent governments in all matters not dele- 
gated to the general Congress. Their power to 
tax is unrestricted unless they exercise it in such 
a way as to impede the operation of projDer United 
States legislation or the functions of United States 
officers. In this power the State is sovereign and 
supreme, and its wisdom or fairness cannot be in- 
quired into by federal tribunals. 

The amendments to the Constitution, with the 
exception of the last three, are mainly intended to 
secure personal rights against infringement by 
the United States Government. Under the first 
amendment which forbids Congress from passing 
any law respecting the establishment of religion or 
prohibiting the free exercise of speech, of the press, 
or of the people peaceably to assemble, it has been 
held that Congress has no 230wer to punish indi- 
viduals for disturbing assemblies of peaceable 
citizens ; that this is the prerogative of the several 
States, and that it belongs to the preservation of 
the public peace entrusted to local legislation. 

Although the right of the people to keep and 
bear arms is secured by the Constitution of the 



118 CONSTITUTIONAL HISTOEY. 

United States, tlie provision lias been held not to 
prevent tlie passage of a law to prevent the carry- 
ing of concealed weapons. 

Under the provision which secures the right of 
the people against unreasonable searches and 
seizures, it has been held that those provisions of 
the United States revenue laws which authorize a 
revenue officer to issue a summons for the produc- 
tion of books and papers were valid, and that this 
provision in itself does not prevent the Legislatures 
of the several States in absence of any State and con- 
stitutional inhibition from passing such seizure 
laws as they see fit. 

The provisions securing all persons held to 
answer for a capital or otherwise infamous 
crime against conviction except by a presentment 
or indictment of a grand jury, except in cases aris- 
ing under the land and naval forces in time of war, 
or public danger, have been construed not to apply 
to misdemeanors, and not to apply to trials in a 
State court for an alleged crime without any pre- 
vious indictment by a grand jury. And although 
a man may not be twice put in jeopardy of life or 
limb> for the same offence, nevertheless he may be 
twice tried for the same crime, if no acquittal or 
conviction has been had by a prior jury because 
of a disagreement or mis-trial. In the provision 



THE JUDICIAL POWER. 119 

that no man shall be deprived of life, liberty or prop- 
erty without due process of law, process has been 
held to mean some form of proceeding of a judi- 
cial nature known to the common law. Therefore, 
an order of the President is not due process, nor is 
a statute which deprives a man of his proj)erty 
by the repeal of a prior grant of land due pro- 
cess. Rights once acquired cannot be divested 
without a process known to judicial forms, result- 
ing in a trial of some kind. 

In the same amendment it is provided that no 
private property shall be taken for public use 
without just compensation. This of course implies 
that no private property shall be taken for private 
use at all, with or without compensation. Public 
use, of course, implies all use made necessary by 
war, in which event property may be taken without 
compensation ; and also for all public purposes, 
when there is no war, which arise under the exer- 
cise of the power of eminent domain. This right 
need not be exercised directly by the general Con- 
gress, but may be deputed to corporations by giving 
grants of power to them to perform functions public 
in their character, such as building of roads, bridges, 
water-ways, &c., and who may be empowered to 
exercise the right of eminent domain on making 
compensation in a manner provided by a statute. 



130 CONSTITUTIONAL HISTOEY. 

No State nor tlie United States can take property 
from indiyiduals for ends whicli are not public. 
Tlius it has been lield that to exercise the taxing 
power in aid of private enterprises, however desir- 
able the encouragement of such enterprises may be 
for the general prosperity of the community, is un- 
constitutional and improper legislation. It is pos- 
sible that at some future day the Supreme Court 
of the United States may reverse its former de- 
cisions under the regulating of commerce clause 
and upon the ground just stated, declare protective 
tariff legislation under guise of laws for the col- 
lection of revenue unconstitutional. No State 
can condemn the property of the United States. 
The power in that respect of the Federal Govern- 
ment is exclusive. It can neither be enlarged nor 
diminished by a State, nor can any State prescribe 
the manner in which it must be exercised, and the 
consent of a State can never be a condition prece- 
dent to its exercise. 

In case of criminal prosecutions the Constitution 
limits the power of the courts to trials within the 
district where the crime has been committed, gives 
to the accused the right to be confronted with the 
witnesses against him, secures for him the compul- 
sory process of courts to obtain witnesses in his 
favor, and compels the courts to assign counsel for 



THE JUDICIAL POWEE. 121 

his defence. Under this provision it has been 
held by the United States courts, that no persons, 
except those who are connected with the army or 
navy, in districts where the courts are open can 
be charged with crinje and tried before a military 
commission. 

One of the most important protections to indi- 
vidual liberty embodied in the Constitution of 
the United States is in the seventh article of 
the amendments, which provides that no fact 
tried by a jury shall be reexamined by any 
court in the United States otherwise than accord- 
ing to the rules of common law. This secures 
citizens of the United States against vexatious 
proceedings by which they may be again and again 
harassed on the same subject matter of complaint, 
after the matter has once been judicially deter- 
mined. "When so judicially determined both the 
laws of the States and the procedures of the courts 
of the United States provide for proper appeals by 
means of which the question of errors may be 
considered and determined, and thus alone the 
subject matter of the controversy may be reviewed. 
When determined, however erroneously, by a court 
of last resort or by a competent judicial tribunal 
from whose judgment no appeal has been taken, 
the judgment is to be considered final, and in the 



122 COlSrSTITUTIOJSrAL histoey. 

interests of justice not to be shaken nor to be re- 
examined by any department or any special court or 
by any other court, as between the same parties. 

Trial by jury is so often referred to in the Na- 
tional and State Constitutions that what is a trial 
by jury has been the subject of judicial examina- 
tion, and it has been held that a decision by a jury 
in which three-fourths of a jury are permitted to 
determine, is not such a trial by a jury ; that the 
only proper judgment known to the Constitution 
that can be rendered in a trial by a' jury, is that 
which requires unanimity on the part of the jury. 

The eighth amendment, which provides that 
excessive bail shall not be required, nor excessive 
fines be imposed, nor cruel or unusual punishments 
be inflicted, has been held to apply only to the im- 
position of fines and punishments by United 
States tribunals for offences against the United 
States, and that it was not intended to protect the 
citizens of the several States from the penal codes 
of such States, although the fines or punishments 
may be considered both excessive and cruel. 

The thirteenth, fourteenth, and fifteenth amend- 
ments, which were the result of the civil war, 
had for their object the abolishing of slavery, the 
securing to all persons who were citizens of the 
United States the position of citizens of the States 



THE JUDICIAL POWEE. 123 

wherein tliey resided, and to prevent any State from 
■withliolding the equal protection of its laws from 
any of tlie citizens of the United States by reason 
of any distinction of race, color, or previous con- 
dition of servitude. They also had for their object 
to abolish the apportionment of congressional 
seats which had previously been based upon popu- 
lation unrepresented as citizens ; the slaves in the 
Southern States, counting as part of the population 
prior to the war for purposes of representation, 
although treated as chattels for all other purposes, 
gave to the South an undue proportion of represen- 
tation as compared with the free white population 
of the North. These amendments were also in- 
tended to prevent persons from becoming officers 
of the United States, who had actually engaged, in 
rebellion unless the disability was removed ; and 
finally their provisions are clear and unmistakable 
declarations forever to prevent the questioning of the 
validity of the public debt of the United States which 
had been created to suppress the rebellion, and on 
the other hand forever to prevent the United 
Slates from assuming to pay, or the States from ever 
permitting the payment of, any debt which had been 
created or incurred in aid of the insurrection or re- 
bellion. Every claim for loss or emancipation of any 
slaves, or losses of rebels in property, are forever 



124 COlSrSTITUTIOE'AL HISTORY. 

barred by these amendments, and all courts have 
the duty imposed upon them to declare all such 
debts, obligations and claims illegal and void. 
Under the foregoing amendments it has been held 
that the States are not permitted, under State edu- 
cational laws, to exclude colored children from 
equal educational advantages because of color or 
their African descent, but that separate schools 
might be maintained wherein such children may be 
educated apart from the whites. 

Under the provision that the rights of the citi- 
zens of the United States shall not be denied or 
abridged by the United States or any State on 
account of race, color, or previous condition of ser- 
vitude, it has been held by the Supreme Court of 
the United States that the right of suffrage is not 
thereby conferred upon any one ; that it simply pre- 
vents the States from giving preference to one 
citizen of the United States over another on account 
of race, color, or previous condition of servitude, 
and that it leaves the States as free as theretofore 
to regulate the right to vote, but prevents them 
from making any distinction by reason of race, 
color, or previous condition. 

We have now passed in review the leading 
articles of the Constitution of the United States, 
and the main questions that have arisen for judicial 



THE JUDICIAL POWER. 125 

determination under tliem. Tlie apprehension 
tliat was originally felt that tlie Supreme Court of 
the United States would not faithfully declare the 
principles of the Constitution, and that it either on 
the one side would be under the domination of the 
legislative body, or, on the other, attempt to domi- 
nate the Legislature by improperly declaring such 
measures unconstitutional which could be so 
declared only by a violent misinterpretation of the 
fundamental law, has proved unfounded. The duty 
has thus far been performed with conscientious 
firmness, and so thoroughly do the people of the 
United States, including its Legislatures, rely upon 
the fearless performance of that duty on the part of 
the courts of last resort, that when an objection is 
made in a legislative body, that a certain provision 
in a proposed law is of doubtful constitutionality, 
the ready answer is made that if it is so the courts 
will so declare it, and thus eliminate it from 
the law. 

"We have seen that the Supreme Court of the 
United States itself is established by the Constitu- 
tion. The power to establish inferior tribunals was 
given to Congress. The Supreme Court having 
original jurisdiction in two classes of cases only, 
viz., in cases affecting ambassadors, other public 
ministers and consuls, and in cases in which the 



126 COlSrSTITUTIOlSrAL histoet. 

state is a party, Congress could not vest any 
portion of tlie judicial pov/er of the United States 
except in the courts ordained and established by 
itself. The appointment is vested by the Constitu- 
tion in the President, but the organization of these 
inferior tribunals was made by the Judiciary Act of 
1789. This act repeats the language of the Consti- 
tution of the United States in creating the Supreme 
Court, and extends the power of the court so as to 
include the right to issue writs of prohibition to 
the district courts when proceeding as a court of 
admiralty and maritime Jurisdiction, and writs of 
mandamus in cases warranted by the principles 
and usages of law to any courts appointed by the 
authority of the United States or to persons hold- 
ing office under the authority of the United States, 
where a State or an ambassador or other public 
minister, or a consul or vice-consul is a party. It 
defines the appellate jurisdiction of the Supreme 
Court to be by appeal, or writ of error from the 
final judgments of circuit courts or district courts 
acting as circuit courts ; in civil actions brought 
there by original process or removed there from 
the courts of the several States ; in all final judg- 
ments in the Circuit Court in civil causes removed 
there from any district court by appeal or writ of 
error where the amount in dispute exceeds two 



THE JUDICIAL POWEE. 127 

thousand dollars ; also in cases of equity where 
the amount in dispute exceeds five thousand 
dollars; in all prize cases where the matter 
in dispute exceeds the sum of two thousand dol- 
lars, an appeal lies from the judgments of the Dis- 
trict Courts. Likewise the Supreme Court is to 
entertain appeals of prize causes which were 
depending in the Circuit Courts. It is provided 
that if the judges are divided in opinion in any 
Circuit Court, the point shall be certified to the 
Supreme Court, and its decision or order in the 
premises shall be remitted back to the Circuit 
Court and there entered of record. An appeal is 
provided by the act of 1863 from final judgments 
or decrees of the District of Columbia to the Su- 
preme Court of the United States. By subsequent 
legislation, under which the Court of Claims was 
created, appeals were provided for to the Supreme 
Court of the United States from decisions of the 
Court of Claims when such decisions are adverse 
to the United States in every case, and where ad- 
verse to the claimants when the amount in contro- 
versy exceeds three thousand dollars. It was 
further provided by the Judiciary Act that in case 
of a final judgment or decree in any suit in the 
highest court of a State in which a decision in the 
suit could be had, where is drawn in question the 



128 COlSrSTITUTIOlSrAL histoet. 

validity of a treaty or statute of, or an authority 
exercised under, the United States, and the decision 
is against its validity, or where is drawn in ques- 
tion the validity of a statute or an authority 
exercised under any statute, on the ground of being 
repugnant to the Constitution, treaties or laws of 
the United States, and the decision is in favor of 
its validity, or where any title, right, privilege or 
immunity is claimed under the Constitution, or 
any treaty or statute of, or commission held or 
authority exercised under the United States, and 
the decision is against the title, right, privilege or 
immunity, especially a set-off or claim by either 
party under such Constitution, treaty, statute, 
commission or authority, in such case the final 
judgment or decree may be reexamined, and re- 
versed or affirmed in the Supreme Court of the 
United States on a writ of error, and the writ shall 
have the same effect as if the judgment or decree 
complained of had been rendered or passed upon 
in a court of the United States, and the proceed- 
ings upon the reversal shall be the same except 
that the Supreme Court may in its discretion pro- 
ceed to a final decision of the cause and award 
execution, or remand the same to the court from 
which it was removed ; and the Supreme Court may 
reaffirm, reverse, modify or affirm the judgment or 



THE JUDICIAL POWEE. 129 

decree of sucli State court, and may award execu- 
tion or remand the same to the court from which it 
was removed by the writ. 

This was a most important addition to and clear 
definition of the powers of the Supreme Court, for 
without it State courts, when once having acquired 
jurisdiction of a case, the same not having been 
removed or not being removable under the law to 
the federal courts, would have had the final power 
to determine upon the interpretation of an act of 
Congress or of a treaty, or of the application of 
the Constitution to any particular case ; and how- 
ever strenuously a litigant might have invoked the 
protection of the Constitution of the United States 
against the wrong which was attempted to be done 
him, and however correct his views might have 
been, it would still have been in the power of the 
court to have denied, as against a statute of the 
State, any relief, and wilfully to have shut its eyes 
to the protection which was intended to be given 
by the Constitution of the United States to the 
litigant, and its decision would have been final, 
but for the fact that the Judiciary Act secures to 
every litigant the right to spread upon the record 
the questions applicable to his case, arising under 
the act of Congress or under the Constitution of 

the United States, and thus open to himself an 
6* 



130 CONSTITUTIONAL HISTOEY. 

appeal to tlie court of last resort of the United 
States. Not only was tMs provision necessary for 
tlie purpose of securing the supremacy of the Con- 
stitution and the acts of Congress thereunder oyer 
the Constitutions and laws of the several States, 
but it was also necessary for the purpose of secur- 
ing uniformity of decisions and of interpretation 
of the Constitution of the United States itself. 

A vast number of questions have arisen under 
this power of appeal to the Supreme Court of the 
United States, and the business of that court became 
so encumbered by reason of the numerous appeals 
from State courts on the mere suggestions on the 
record of a United States question, that it became 
necessary for the court, somewhat arbitrarily, to 
limit the appeals in such cases, and to limit the 
inquiry arising from such an appeal from a State 
court to the one question, "Is there a United 
States question involved, and if so has it been 
properly decided by the State courts ? " The 
Supreme Courfc of the United States have there- 
fore declared that when an appeal is made from, 
or writ of error taken to a court of last resort of 
a State, they will not reexamine as an appellate 
court the correctness of the decision of the court 
of last resort upon any other point than the consti- 
tutional one or one arising under the act of Con- 



THE JUDICIAL POWEE. 131 

gress ; so that if tliey should come to the conclusion 
that the case was correctly decided on the consti- 
tutional question, however erroneously the decision 
may have been arrived at on questions which arose 
entirely under the law of the State independent of 
the Constitution of the United States and of the 
United States laws, they will allow the decision to 
stand. This action of the Supreme Court prevents 
appeals to the Supreme Court of the United States 
being taken by simply suggesting a constitutional 
question in order to ha.ve the advantage of that 
court's reexamination of the whole record, and 
if error be found to send it back to be cor- 
rected. 

In cases, however, where the State itself is a party 
or so directly interested that the bias of the State 
court may be supposed to be in favor of the State's 
views as against the United States Constitution or 
the act of Congress, then the court will look into the 
record sufficiently to see whether the decision upon 
other points was not merely colorable, and not deem 
itself concluded by the facts as found by the court 
below ; in other words, whether the appellate juris- 
diction of the Supreme Court applies in such a 
case or not is not to be determined for the Supreme 
Court by the findings of fact on the part of the 
lower court which would preclude its jurisdiction, 



132 COlSrSTITUTIOlSrAL histoey. 

but the Supreme Court of tlie United States will 
itself examine into facts sufficiently to ascertain 
■whether or not its jurisdiction attaches. 

The Judiciary Act further provides for writs of 
ne exeat by the Supreme Court and circuit judges, 
and of writs of injunction by the supreme, circuit 
and district judges ; a limitation upon the power to 
issue writs of injunction to State courts except in 
cases of bankruptcy ; and for the sake of uniformity 
in the various districts and circuits of the United 
States, the laws of the several States, except where 
the Constitution of the United States and statutes 
of the United States otherwise require, are re- 
garded as rules of decision at common law in the 
courts of the United States where they apply ; and 
a recent Judiciary Act has made even the forms 
of procedure in common law proceedings of the 
several State courts in the various districts where 
the courts sit, the forms of pleading and procedure 
of the United States courts. 

Provision is made to prevent injustice by the 
dragging of persons out of the district in which they 
reside, by compelling plaintiffs, residents of the same 
State, to commence their actions within the district 
where the defendant resides, and all parties are 
permitted in the United States courts to manage 
their own cases personally or by counsel. The 



THE JUDICIAL POWER. 133 

Judiciary Act of 1789 makes ample provision for the 
issue of writs of habeas corpus, empowering and com- 
pelling all judges of the United States courts to issue 
this writ of privilege ; it gives an elaborate and de- 
tailed procedure for the return of the writ and the 
adjudications thereupon, and for appeals to circuit 
courts and Supreme Court of the United States, and 
stays all proceedings on the part of the State courts 
pending the consideration of the habeas corpus by the 
court below and the proceedings on appeal. Except 
in the Court of Claims the United States cannot 
involuntarily be made a party in a proceeding at 
law. The jurisdiction of the Court of Claims, as has 
been stated, is confined to claims founded upon any 
law of Congress or upon any regulation of an execu- 
tive department, or upon any contract express or 
implied with the Government of the United States, 
and all claims which may specially be referred to it 
by either House of Congress ; all set-offs, counter- 
claims and claims for damages, whether liquidated 
or unliquidated on the part of the Government of 
the United States against any persons making claim 
against the Government in the courts. 

By the acts of 1863, 1864, and 1868, the large 
claims arising from the seizure of cotton in the 
Southern States towards the close of the rebellion, 
were specially referred to the Court of Claims for 



134 CONSTITUTIOjSTAL histoey. 

action. The lobbies of tlie Houses of Congress 
prior to the organization of the Court of Claims 
had been so beset by claimants that it was found 
necessary to organize a special tribunal to take 
into consideration some of the cases which prior to 
that time were constantly presented to Congress. 
As the court, however, is one of limited jurisdiction 
and as numerous cases of claims against the United 
States Government arise, of which the court has 
no jurisdiction, the committees of Congress are still 
besieged by claimants, and appropriations are 
annually made by acts based upon reports of com- 
mittees in cases where such committees sit as a court 
of judicature determining upon contested claims 
against the United States. Such a committee lacks 
the dignity and power of an ordinary court of jus- 
tice, is subjected to influences which courts of 
justice are not ordinarily subjected to, and has not 
the machinery of a trained bar and regular sessions 
and continuous investigations by means of which 
the truth is ascertained in courts of justice. Hence 
meritorious claims are overlooked and meretricious 
ones are so often paid through the instrumentality 
of Congress, that the question has recently been 
considerably agitated whether it would not be 
wiser to have the sovereignty of the United States 
Government sufficiently unbend as to allow it to bo 



THE JUDICIAL POWEK. 135 

sued in its own courts in tlie same manner as a 
private litigant. 

Both before and shortly after the adoption of the 
Constitution it was subjected to very severe criticism 
on the ground that it did not contain a Bill of Rights. 
A careful examination of the first twelve amendments 
will show that they were mainly passed to satisfy 
that objection. The objection that was urged to 
their adoption was that they were unnecessary ; that 
the Constitution begins with the declaration, "We, 
the people of the United States, to secure the bles- 
sings of liberty to ourselves and our posterity, do 
ordain and establish this Constitution for the 
United States of America ; " that as the very pur- 
pose of the Constitution was to secure the bles- 
sings of liberty this declaration was, as Alexander 
Hamilton thought, a better recognition of popular 
rights than' that which is contained in the elaborate 
declaration of rights in every State Constitution. 
It was, however, thought wiser to direct, enlighten 
and quicken public opinion as to the rights which 
were intended to be reserved to the people, and 
which were not intended to be delegated to the 
general Congress, that they be in terms so specifi- 
cally declared that any infraction thereof would be 
immediately recognized as unconstitutional and 
void. The first amendment, which related to free- 



136 COI^STITUTIOI^AL HISTOET. 

dom of religion " was enacted under tlie solemn 
consciousness," says Story, " of tlie dangers 
from ecclesiastical ambition, tlie bigotry of spiritual 
pride, and tlie intolerance of sects, and it was 
therefore deemed advisable to exclude from the 
national Government all power to act upon the 
subject. One of the reasons, too, for the necessity 
and wisdom of this course was the fact of the dif- 
ferent religious complications of the majorities 
in different States. In some of the States the 
Catholics predominated ; in others, Episcopalians ; 
in others, Presbyterians ; in others, Quakers ; and 
any recognition on the part of the Government of 
any religion, except in the vaguest possible sort of 
way, would have given rise to considerable amount 
of jealousy and bickering." 

The same amendment contains the security for 
freedom of the press and of speech. It is necessary 
to say that this security was not intended to give 
to any citizen an absolute right to speak or write 
or print whatever he saw fit without personal 
responsibility to the person aggrieved thereby. 
Every man was intended to have the right to speak 
and the right to print his opinions upon any sub- 
ject whatever without any prior restraint by way 
of censorship ; but if he injure any other person in 
his rights of person, property or reputation, he is 



THE JUDICIAL POWEE. 137 

subject to civil and criminal prosecution for such 
injury precisely as lie would be for any other injury 
to person or property. " Without such limitation," 
says Story, " it might become the scourge of the 
republic." The question how far the Government 
has the right to interfere with the press under the 
security thus afforded, and where licentiousness 
begins and liberty ends, is one which has often 
been mooted, but has not yet found a satisfactory 
solution. There is, however, much force in the 
contention that if the Government is to determine 
at any time what is liberty and what is license, 
then the constitutional provision is but a tissue of 
empty words, because every government, however 
autocratic, admits of certain strictures ; the ques- 
tion is simply as to where the line should be drawn. 
The sounder doctrine in the United States now 
seems to be this : that the Government cannot ex- 
ercise a restraint upon publications ; in other words, 
no censorship of the press can be exercised under 
the constitutional guaranty that men may speak and 
write freely what they please ; and however danger- 
ous and bad the doctrine may be which is being 
advocated or promulgated by the press, it is not 
within the power of the Government to prevent its 
publication. On the other hand if the press at- 
tacks private rights, calumniates individual char- 



138 CONSTITUTIOJSTAL HISTORY. 

acter, or destroys domestic peace, it is responsible 
to the individual aggrieved both by criminal in- 
dictment for libel and by private prosecution for 
libel for the injury thus sustained. And the equity 
courts have power to restrain the intended pub- 
lication of articles if they are injurious to private 
rights, and are not merely the discussion of a 
public question. Whether the United States Gov- 
ernment can be forced to carry through the mails 
literature which is confessedly immoral, is a ques- 
tion which has not yet received final adjudication. 
Upon the instigation of the New York Society for 
the Suppression of Vice, the object of which is 
mainly directed against immoral jDublications, the 
United States Government has refused to carry cer- 
tain libidinous and clearly immoral sheets. This 
refusal is of course destructive of the business of 
the publications, and as the refusal was generally 
accompanied by declining to redeliver the sheets 
in question, it practically amounted to a confisca- 
tion of private property. In the lower courts this 
course on the part of the Government has been 
held to be constitutional and proper, as it was in 
part the exercise of police surveillance and super- 
vision, and no man's right to speak or write what 
he pleased was impaired by the refusal of the Gov- 
ernment to carry such writings. The argument, 



THE JUDICIAL POWEE. 139 

however, against this position is that as the general 
Government through its revenue laws maintains a 
postal department to which all are supposed equal- 
ly to contribute, to deny the facility of the postal 
department is to impose in fact a punishment for a 
particular writing, and is thus an impairment of 
the freedom to publish, which was intended to be 
secured by the Constitution. The question will 
probably receive final adjudication by the Supreme 
Court before long. During the war of the rebel- 
lion, 1861-1865, several of the metropolitan papers 
were imposed upon by a forged proclamation of 
President Lincoln calling for an additional draft of 
four hundred thousand men, to repair the disasters 
to the Union arms. This pretended proclamation 
greatly intensified the feeling of despondency that 
had already taken possession of the people in the 
North at that particular juncture of the war. The 
newspapers publishing the proclamation were or- 
gans of the Democratic party, and were therefore 
subjects of suspicion on the part of the general Gov- 
ernment. They were suspended by military orders, 
and a military force took possession of their prem- 
ises and stopped for a short time the publication 
of these journals. The question of the right or 
authority of the Government in time of war so to 
suspend a paper was never judicially raised. The 



140 CO]SrSTITUTIO]SrAL HISTOET. 

order suspending them was recalled on tlie discov- 
ery by the Executive Department of the Govern- 
ment that the mistake was an innocent one and 
that it was not intended wilfully to embarrass the 
Government in its military operations, as it was 
wholly the consequence of an imposition. Under 
the authority of the case known as the Milligan case, 
decided in 1866, we are bound to assume that the 
Supreme Court of the United States would have 
declared such a suspension illegal and unwarranted 
by the Constitution at any point where the civil 
tribunals were in full force, even in time of war. 
At the theatre of war, of course, a different rule 
prevails ; but because a nation is at war every part 
thereof is not necessarily under the domination of 
the drum-head court-martial. 

The right of the people peaceably to assemble 
and petition the Government for the redress of 
grievances is one which was borrowed from the 
Declaration and Bill of Eights in England with 
very little change in phraseology. No judicial 
opinions have ever been given upon this clause, 
because the right has never been denied. 

The right of the States to have a militia, and the 
right of the people to keep and bear arms, is the sub- 
ject of the following amendment. This is also sub- 
stantially in the Bill of Eights of 1689. That this 



THE JUDICIAL POWEE. 141 

provision simply means arms necessary for the 
militia and not to secure to each man the right to 
keep a private arsenal, goes without saying. That 
no soldier shall in time of peace be quartered in 
any house without the consent of the owner was to 
prevent the billeting of soldiers in time of peace 
upon the people. This amendment has in practice 
been found to be unnecessary. The army of the 
United States in time of peace is so small and the 
public property of the United States so vast that 
there is no necessity ever to billet soldiers upon 
the inhabitants. The right of the people to be 
secure in their persons, houses, papers and effects 
against unreasonable searches and seizures, and to 
prevent such searches and seizures, except upon 
due warrant issued by a court of justice, is one 
which would seem to be essential for the preserva- 
tion of personal liberty, and has been twice assailed 
in the United States, once under the Alien and 
Sedition laws during the administration of Jeffer- 
son, and the second time during the war of the re- 
bellion by the State and War Departments. In 
both cases the Executive Departments sought ref- 
uge under the principle of salus populi suprema lex / 
that the country was in peril and that it was neces- 
sary to disregard a, single constitutional provision 
for the purpose of saving the whole structure. 



143 COiTSTITIJTIOlSrAL HISTOEY. 

The revenue laws of the United States contain 
many clauses of questionable authority by which 
revenue officers are entitled to search and seize 
books and papers of merchants and private citizens, 
and the question is not yet fully determined whether 
such inquisitorial proceedings and seizures are not, 
both in spirit and in letter, repugnant to this pro- 
vision of the Constitution. 

That excessive bail shall not be required, nor ex- 
cessive fines imposed, nor cruel and unusual punish- 
ments inflicted, is again a transcript of a clause of 
the Bill of Eights of the Eevolution of 1688. This 
clause operates as a restriction upon the powers of 
the United States courts alone, and not upon the 
State courts. 

The various amendments have from time to time 
been the subject of judicial decision, but the most 
important of the amendments are the last two of 
the first eleven, which are to the effect that the 
enumeration in the Constitution of certain rights 
shall not be construed to deny or disparage others 
retained by the people. "Were ii; not for this clause 
it might have been argued with considerable plausi- 
bility, that as the people saw fit, by amendments, 
to incorporate into the Constitution, a Bill of Eights, 
whatever they failed to preserve or mention they 
ceased to have. This provision was made to guard 



THE JUDICIAL POAVER. 143 

against tlie evil suggested in tlie Federalist when it 
gave a reason why tlie Constitution liad not given 
a Bill of Pdglits, because the reservation of powers 
without a Bill of Eights was larger than the reser- 
vation of powers with a Bill of Bights. 

The next and last amendment of the first eleven 
is that the powers not delegated to the United 
States by the Constitution, nor jarohibited to it by 
the Constitution, are reserved to the States respec- 
tively or to the people. This is a rule of interpre- 
tation of the Constitution which probably would 
have been followed by the courts without this ex- 
press declaration. The Constitution is an instru- 
ment declaring limited and enumerated powers, and, 
therefore, whatever power is not given is withheld ; 
but the declaration has been productive of much 
good, and took the matter of whether the United 
States is a government of merely delegated powers 
out of the range of controversy. 

One great step in advance, however, must here 
be noted between the old Articles of Confederation 
and the Constitution of the United States, inas- 
much as here the expression is "the powers not 
delegated to the United States by the Constitu- 
tion," and in the Articles of Confederation it was 
" powers not expressly delegated or prohibited." 
Therefore, as a large proportion of the powers ex- 



144 CONSTITUTIONAL HISTOEY. 

ercised by Congress arises from powers wMcli it 
derives by necessary implication from the powers 
expressly conferred, tlie United States government 
differs in tliat respect from the Government under 
the Articles of Confederation, inasmuch as that 
had no power which had not been specially con- 
ferred, and therefore had no powers by implication. 
Hence it was crippled at every turn because the 
organic law which constituted it did not in express 
terms confer the right to pass a particular bill. 



CHAPTER V. 

THE POST-CONSTITUTIONAX, HISTORY OP THE IHSnTED 

STATES. 

The foregoing chapters give a succinct state- 
ment of the provisions of the Constitution and 
of the leading questions that have been decided 
under that instrument. An understanding, how- 
ever, of the institutional history of the United 
States would be incomplete if the political and 
constitutional questions entering into politics from 
the time of the adoption of the Constitution down 
to the present day were not sketched, in however 
superficial and rapid a form. The political divis- 
ions of parties in the United States unquestionably 
exerted a very strong influence upon judicial de- 
cisions and the interpretation of the provisions of 
the Constitution of the United States. There is an 
unconscious influence exercised by public opinion 
upon the minds of those who are called upon to 
decide finally constitutional questions, which is 
neither corrupt nor sinister, but which causes a 

written constitution to approximate more closely 
7 145 



146 CONSTITUTIONAL HISTORY. 

to an TinwritLen one, like that of England, by mak- 
ing the written word bend and yield to the neces- 
sities of the hour, as a large and influential majority 
may determine, and that without constitutional 
amendment. The limits of this book do not per- 
mit so analytical a survey of the whole field as to 
show in detail the influence and pressure of public 
opinion upon the Supreme Court of the United 
States and the gradual yielding of the court to the 
pressure of that opinion, or the influence of the 
opinions held by the members of the court on po- 
litical subjects upon their decisions as a court. 
The reader must make those applications for him- 
self when the story of the political parties in the 
United States shall have been told. 

It will be remembered that the Constitution came 
into existence under an almost irresistible pressure 
of necessity either to disestablish the Government 
of the United States and to leave each State free as 
an independent sovereignty to make such alliances 
as it might see fit — because the Articles of Confede- 
ration proved but a rope of sand — or to organize a 
Government clothed with sufficient power to enforce 
obedience to its laws ; with power to assess and col- 
lect revenue, with power to make war, treaties of 
peace and foreign aUiances, and having both towards 
the States and as against foreign nations all the attri- 



THE POST-CONSTITUTIONAL HISTORY. 147 

butes of sovereignty. The jealousy of tlie States, 
however, which caused the principal difficulty under 
the Articles of Confederation, and the ambition of 
local State leaders, who were apprehensive that 
the formation of the Constitution of the United 
States would be destructive of their influence, and 
who therefore opposed the Constitution even after 
its adoption, survived sufficiently to cause within an 
early j)eriod thereafter a renewal of hostility to the 
pact, no longer in the form of open opposition to 
the Union, but under the form of urging a strict 
and limited construction of the powers conferred 
upon the federal Government, and to make an ex- 
aggerated claim of sovereignty on the parts of the 
States. 

Under the Constitution of the United Slates 
Washington was unanimously elected first Presi- 
dent, and he so continued for the period of eight 
years, and probably would have continiied to 
hold the office during the period of his life, if he 
had not voluntarily seen fit to withdraw at the end 
of his second term, presumably for the purpose of 
creating an example to limit the Presidential term, 
so that thereafter there should be a sufficiently 
frequent change of the Executive head of the 
Government to prevent future elections from 
being mere idle forms, and also to prevent a con- 



148 COl^STITUTIONAL HISTOET. 

solidation of power in the hands of the Executive, 
which long continuance in office would inevitably 
bring about. 

During Washington's administration differences 
of opinion were held largely in abeyance. The 
commanding personal dignity of Washington and 
the complete confidence reposed in him by the body 
of the people, his unimpeachable personal character 
and his remarkable good sense and moderation, 
gave to the country during such first eight years 
that j)eace, quiet, and freedom from political agita- 
tion which were above all things needful for the 
purpose of establishing the Government, rehabili- 
tating its financial condition which had become 
almost hopeless under the Confederation, placing 
foreign relations upon a sound footing, and allowing 
the people of the United States and its Government 
a tranquil growth unharassed by internal con- 
flict. 

The adoption itself of the Constitution was of 
course accompanied with considerable opposition. 
But ten States had adopted the Constitution at the 
time of the inauguration of the Government, and in 
some of the States the Constitution was adopted by 
but slight majorities. There were naturally, there- 
fore, after the Constitution, as well as before, two 
parties — Federalist and Anti-Federalist — the lines 



THE POST-CO]SrSTITUTIO]vrAL HISTOEY. 149 

of wlaich were, on the whole, retained after the 
Government was inaugurated. The Anti-Federalist 
party claimed, after the Constitution was adopted, 
as strong a loyalty to the government as the Fed- 
eralist party itself, but the form of opposition it 
then adopted was to limit the general Government 
to the strict letter of its powers. 

The first Congress met in the City of New Tork. 
The first questions that engrossed its attention 
after the adoption of the Constitution were the 
organization of the Judiciary, the revenue duties 
on imports and exports, as a system of taxation for 
the replenishment of the Treasury to carry on the 
necessary purposes of government. The discussion 
in Congress on the tariff laws shows that at the very 
outset the question of using the tariff as a means of 
protecting " infant " manufactures was one which 
entered into the method of formulating the legisla- 
tion as part of the system. Fitzsimmons, of Penn- 
sylvania, was mainly the author of the first tariff list. 
James Madison, although he owned liimself, as he 
said in the debate, " the friend of a very free sys- 
tem of commerce, and that if industry and labor are 
left to take their own course, they will generally be 
directed to those objects which are most productive, 
and that, in a manner more conservative and direct 
than the wisdom of the most enlightened Legislature 



150 COl^TSTITUTIOlSrAL HISTOEY. 

could point out," nevertheless conceded (a concession 
which, by the light since thrown upon these ques- 
tions by scientific research, appears to have been 
an error) that as to the navigation element of the 
tariff, if American citizens were left without restraint, 
and the law made no discrimination between vessels 
owned by citizens and those owned by foreigners, 
while other nations made such discrimination, such 
a policy would go to exclude American shipping 
from foreign ports. He conceded the necessity that 
every nation should have in itself the means of de- 
fence, and that in the period antedating the Con- 
stitution, establishments had grown up under the 
powers which those States had of regulating trade, 
which ought not to be allowed to perish in conse- 
quence of recent alterations, and as he was the 
leader of the House, his surrender to the idea of 
making protection an incidental consideration in 
the raising of the revenue of the United States en- 
grafted that system upon the legislation of the 
country. A discrimination was imposed in favor of 
teas imported in American bottoms ; a tonnage duty 
was imposed, discriminating in favor of American 
products ; a discriminating duty on spirits was 
passed in favor of nations having commercial treat- 
ies with the United States. In the first Congress 
the slavery question made its earliest appearance 



THE POST-CONSTITUTIONAL HISTOEY. 151 

in tlie shape of a proposition, emanating from Mr. 
Parker, of Virginia, to insert a clause, imposing a 
duty of ten dollars on every slave imported, with a 
view of discouraging the slave trade. The motion 
was not agreed to, but the discussion which it raised, 
in which Madison took an important part, is inter- 
esting, as showing that at that time many of the 
Southern States were anxious to limit the growth 
of the slave power, and looked forward to the period 
when slavery might become entirely obliterated. 
The same Congress passed a Navigation law for the 
registering of American vessels ; created a Coast 
Survey ; organized Departments ; and placed the 
power of appointment and removal in the hands of 
the President. The power of removal by the Pre- 
sident was strongly opposed, and the measure 
conferring it passed the Senate only by the casting 
vote of the Vice-President, Mr. Adams. The dis- 
cussions which preceded and accompanied the 
adoption of the Constitution by the various States, 
so unmistakably demonstrated the apprehensions 
of great masses of the people, that the Constitution 
was not suflficiently guarded by the declaration of 
the rights of the people, which were to be free from 
any possible impairment at the hands of authority, 
that Mr. Madison at once proposed amendments to 
lay those fears at rest, and the amendments which 



153 CONSTITUTIONAL HISTOET. _ 

have been tlie subject of consideration in the last 
chapter, were the result of this action. Jefferson's 
objections to the Constitution as it stood in 1789, 
were mainly met by the amendments, except the 
one in reference to which he was extremely strenu- 
ous, that the Executive shall not be reeligible to 
office. The important subject of the national debt 
was laid over until the following "session for the 
purpose of receiving the report of the Secretary of 
the Treasury upon a plan for its liquidation. On 
the subject of the public lands nothing was done 
except to effect the passage of an act for the 
government of the Northwest territory. The most 
stormy debate of the session was upon the question 
of the permanent seat of the federal Government. 
The Southern members wanted a site on the Poto- 
mac ; Pennsylvania wanted a return to Philadel- 
phia, which had been the seat of the Continental 
Congress. The House agreed, as a matter of com- 
promise, to fix the seat of Government on the 
Susquehanna. The bill came back from the Senate 
so altered as to substitute for the Susquehanna the 
district ten miles square adjoining Philadelphia. 
The House agreed to this, with a slight amendment 
which made it necessary to have the bill go back to 
the Senate ; but by that time the dissatisfaction of 
the Southern members had made itself so apparent 



THE POST-CONSTITUTIONAL HISTORY. 153 

that it was deemed wiser to lay the whole matter 
over to the following session. 

The only important administrative question that 
characterized the first year of Washington's admin- 
istration in addition to the mere selection of persons 
to fill the various offices, was the making of treaties 
with the Indian nations ; and as along the whole 
western frontier the Indian afi'airs were in a most 
unsettled state, it was necessary to take immediate 
measures to prevent a general outbreak among the 
Indians against the new Government. Washington 
appointed commissioners to treat with them, and 
these commissioners confirmed some of the old 
Indian treaties that had been made by the various 
States, and promised the Indians immunity from 
taxation and forcible prevention of settlers from 
trespassing upon their lands. 

At the opening of the following session Alex- 
ander Hamilton, the Secretary of the Treasury, 
reported the debt due to the Court of France and 
to private individuals and foreign nations, some- 
thing below twelve million dollars, and the do- 
mestic debt at $42,500,000. The highest possible 
tone was adopted by Hamilton as to the obligation 
of the United States for the payment of the debt 
and the expediency of doing so, and not to lend 

ear to the suggestions which were made to scale 
7* 



154 COlSrSTITUTIONAL HISTOET. 

the debt because of the depreciated prices at which 
the then holders had bought up its evidences on 
speculation. The State debts arising out of the 
war, which were practically repudiated, made an- 
other addition of $26,000,000. He proposed the 
funding of the debt at six per cent., and to receive 
in payment of the new bonds the evidences of the 
old debt, and to create a sinking fund from post- 
office proceeds for the gradual extinction of the 
new debt. The Continental paper money, which 
amounted nominally to $200,000,000, had by the 
Continental Congress itself been reduced by a system 
of scaling at the rate of forty for one. There were 
$78,000,000 of the Continental paper money yet out- 
standing, and it was intended not to disturb that re- 
duction, but to accept the Continental paper money 
upon the basis of two and one-half cents on the 
dollar. It was finally agreed that the Government 
should pay the holders of the certificates of the 
United States the face thereof, and the question 
arose on the assumption of the State debts. This 
led to an extremely acrimonious debate, arising 
from the fact that some of the States had largely 
provided for the expenses of the war by taxation, 
while others ran recklessly into debt, and it was 
evidently unfair to the inhabitants of the States 
who had borne the burden of taxation during the 



THE POST-CONSTITUTIOlSrAL HISTOEY. 155 

war for the purpose of preventing the accumulation 
of a debt, that they should be now called upon to pay 
the interest and eventually the principal of bonds 
representing the reckless issues of bills of credit by 
sister States, and thus to tax themselves for the free- 
dom from taxation which their neighbors had eu joyed. 
The plan of Hamilton finally prevailed on a very 
close vote. During the second year of the Union 
under the Constitution a bill was passed to locate 
the seat of Government for ten years at Philadel- 
phia, and thereafter permanently on the Potomac. 
This measure was passed only by combining there- 
with the assumption of the State debts, as a com- 
promise measure. During the third year of Wash- 
ington's administration a division arose in the 
Cabinet, which subsequently resulted in a party 
division on the bill to incorporate the Bank of the 
United States. Jefferson and Madison were of the 
conviction that it was an unconstitutional measure 
and had a tendency to corrupt the powers of gov- 
ernment. Hamilton and Knox, members of the 
Cabinet, gave their written opinions in favor of the 
President signing the bill. Randolph was also 
opposed to it. It is fair to say, however, that the 
Republican party, which subsequently became the 
Democratic-Republican, and later the Democratic 
party, drew considerable accession of strength from 



156 CO]SrSTITUTIO]SrAL histoey. 

tlie Federalist party in process of time, because 
the loyalty of tlie Kepublican party to the Con- 
stitution since its adoption could scarcely be 
questioned. Opposition to the Constitution itself 
had well-nigh died out. There was room and 
reason, however, for the existence of a party of 
strict constructionists of the powers conferred, 
actuated by a strong determination to confine in 
every possible way the Federal party within the 
limits of federal power and to assert the local 
rights of States as to all matters not conferred by 
the Constitution to federal control. The firm con- 
viction had taken root in the minds of many able 
men in the United States, of whom Jefferson was 
the leader, that State organizations were the only 
means by which the liberty of the citizen could be 
preserved, and that a nation of the territorial extent 
and diversity of interests of the United States 
would in time become a centralized power suffi- 
ciently strong to crush out individual liberty un- 
less there existed in the form of States quasi in- 
dependent governments — as imperia in imperio 
sufficiently powerful to oppose a barrier against 
any encroachment of the central Government. 

During the administration of Washington, the 
divergence of the ideas represented by Thomas 
Jefferson and those represented by Alexander 



THE POST-CONSTITUTIONAL HISTORY. 157 

Hamilton, became more and more marked, so tliat 
on December 31, 1793, Jefferson felt constrained to 
retire from Washington's Cabinet. During part of 
tLe time of Washington's administration, tlie rela- 
tions towards botli France and England had become 
critical, but Washington's tact overcame the difl&- 
culties ; and the causes of irritation, although not en- 
tirely removed, were for the time being suppressed. 
Washington refusing to be a candidate for a third 
term, caused the election, in 1796, of John Adams 
and Thomas Jefferson as respectively President and 
Vice-President of the United States. It will be 
remembered that the election was then held be- 
fore the new amendment took effect under the 
original clause of the Constitution, by which both 
great parties in the United States were substan- 
tially represented in the offices respectively of 
President and Yice-President ; because under the 
original clause he who had the largest number 
of votes became President, and the one next 
in number became Vice-President. Therefore, 
Adams, representing the Federalist party, be- 
came President of the United States, and Thomas 
Jefferson, who was then the leader of the Kepub- 
lican party, became the Vice-President. Madison, 
who had heretofore acted between the two parties, 
became at that time, with Jefferson, one of the 



158 CONSTITUTIONAL HISTOEY. 

leaders of the Republican party. During Adams' 
administration the party lines became more closely 
drawn, and there was considerable accession of 
strength to the Eepublican party as measure after 
measure was introduced and debated, which seemed 
to indicate a centralization of political power. 
Another of the reasons why the Republican party 
grew in strength about that period, was, that there 
were incessant petitious for the abolition of slav- 
ery introduced in Congress, and whilst Congress 
protested in several instances that it had no right 
to interfere with domestic slavery in the United 
States, the Southern and Middle States felt that 
their safety against the ultimate interference in that 
particular by the United States Government rested 
upon the general acceptance of the States rights 
doctrine insisted upon by the Republican leaders. 

During the first year of Adams' administration 
(1797) affairs with France became complicated by 
reason of the war then waging between France and 
England, in which France insisted that America, 
her former ally, should, if not openly aid the 
French republic, at least take a position of armed 
neutrality as against England. The decrees of 
the French republic which injuriously affected 
American commerce led to a rupture of diplomatic 
relations, and caused, in the following year, the 



THE POST-COlSrSTITUTIONAL HISTOEY. 169 

passage of tlie Alien and Sedition laws, the Alien 
law empowering tlie President to expel sucli per- 
sons as he might find who were plotting against the 
public peace, and the Sedition act being designed 
to restrict the freedom of speech and liberty of the 
press. The passage of these measures by the Fed- 
eral party added to its unpopularity. The desire 
on the part of the people of the United States to 
preserve peace, caused them to look with grave 
suspicion upon the active preparations which were 
then made for war. In the year 1800 a condition 
of irritation, almost of war, already existed between 
France and the United States. But with the disso- 
lution of the French Directory in 1799, and the ac- 
cession of Napoleon as First Consul of the French 
republic, a treaty was soon concluded. The year 
1800 also witnessed the first caucus nomination for 
Presidential candidates in the United States under 
the Constitution. In 1800 an election took place 
for President of the United States, to take the place 
of Adams. When the electoral votes were counted, 
in February of the following year, it was found that 
no election had taken place, as Aaron Burr and 
Thomas Jefferson had an equal number of votes, 
and the choice under the Constitution devolved on 
the House of Representatives, which, on the thirty- 
sixth ballot, elected Mr. Jefferson President. 



160 CONSTITUTIONAL HISTOEY. 

A breacli liaci taken place between the two great 
leaders of the Federal party, Adams and Hamilton, 
immediately prior to the election of Jefferson, 
which weakened the Federal party considerably, 
and caused the success of the Eepublicans. Dur- 
ing this contest between Jefferson and Burr for the 
Presidency, each one having had seventy-three 
votes in the Electoral College, Hamilton cast his in- 
fluence in favor of Jefferson and led to his election. 
This and subsequent acrimonious contests between 
Hamilton and Burr, caused the unfortunate duel 
between them in 1804, which cost Hamilton his life. 

The dangers to the country which this struggle 
for the Presidency disclosed, led to the adoption of 
the twelfth amendment, by which the President 
and Yice-President are voted for by the Electoral 
College separately on distinct lists, and each inde- 
pendently of the other. 

Jefferson introduced, when Congress met after 
his election, the innovation to send a message to 
Congress instead of opening Congress in person. 
It savored too much of British forms for the Presi- 
dent to open Congress in person, and hence the 
Eepublican party, to show its contempt for mon- 
archical institutions, adopted, through the instru- 
mentality of Jefferson, the form which has since 
been followed by every President of the United 



THE POST-COlSrSTITUTIOI^'AL HISTOEY. . 161 

States, of not meeting Congress in person, but of 
sending messages, as from time to time liis vieAVS 
to Congress are to be expressed. 

The leading incident of Jefferson's first few years 
of administration was the purchase of Louisiana 
from Napoleon for $15,000,000. Louisiana as then 
ceded was a territory out of which ten States (in- 
clusive of what is now known as Louisiana), three 
Territories, and a large part of two other States 
have since been carved. 

Jefferson continued in office during two terms, at 
the end of which the electoral votes were cast for 
James Madison and George Clinton. This was 
again a Republican triumph. As early as 1805 the 
Federal party was reduced to seven senators and 
twenty-five members of the House. The parties 
divided on the Embargo Act, and already what sub- 
sequently developed into a war with Great Britain, 
arising from the impressment of American seamen 
and interference with American ships, was looming 
up, as it was claimed that in the war between Eng- 
land and France, almost six thousand American 
seamen had been impressed into the British navy. 
The embargo was intended as an act of retaliation 
against both England and France for the mischie- 
vous effect upon American commerce of the Milan- 
Berlin decrees and the British Orders in Council. 



162 CONSTITUTIONAL HISTOET. 

During tlie administration of Madison war was 
declared against England on the 18th of June, 1812, 
which lasted until December 24th, 1814, when a 
treaty of peace was signed at Ghent, although the 
actual hostilities continued until February, 1815, 
when the news of the signing of a treaty first reached 
America. 

During the war the Federal party fell into utter con- 
fusion and disgrace in consequence of its opposition 
to the war and because of the call of the convention 
known as the Hartford Convention, in which some 
of the New England federalists strongly announced, 
through their representatives there, the theory of 
secession, if the war should be prosecuted much 
longer, as it was claimed that the war was destruc- 
tive of the interests of the Eastern States, while it but 
remotely affected the Middle and "Western States. 
The successful termination of the war strengthened 
the Eepublican, or Eepublican-Democratic party, 
as it was then called, to such a degree that it domi- 
nated in almost every State in the Union. The 
result of the war was the swelling of the debt to 
more than $127,000,000, but the moral results from 
it were on the whole beneficial, because the gal- 
lantry with which the navy was handled, and the 
battle of New Orleans, fought under General Jack- 
son on the American side, gave to the American 



THE POST-CONSTITUTIONAL HISTORY. 163 

people a degree of self-reliance wLicLi largely de- 
veloped the growth of a spirit of national feeling 
in the United States. 

The charter of the Bank of the United States 
having expired in 1811, it was reorganized in 1816, 
with a capital of $35,000,000. Within a compara- 
tively short period the method of its administration 
produced a speculative era which brought in its 
train a financial crisis and distress. 

The main political questions which agitated the 
people of the United States during the period of 
Madison's administration concerning the relations 
of the United States with England were war or 
anti-war before the wfr broke out, and a vigorous 
prosecution of the war or a discontinuance of it 
whilst it was in operation. It was during the latter 
part of this period that Webster made his first ap- 
pearance in the Congress of the United States, and 
commanded immediate attention by his eloquence 
and talent for debate. 

At the close of Madison's administration the thir- 
teen States of the Union had already grown into 
nineteen, the population of 4,000,000 had grown to 
almost 10,000,000, and the House of Representa- 
tives had grown to a body of 213 members. 

In 1816 James Monroe, the Republican-Demo- 
cratic candidate, was elected President. The second 



164 CONSTITUTIOlSrAL HISTOEY. 

year of Monroe's administration witnessed the com- 
mencement of the struggle on the slavery question 
between the Northern and the Southern States, 
which culminated in the War of the Eebellion in 
1861. On the bill to authorize the people of the 
Territory of Missouri to form a constitution and 
State goyernment, and for its admission into the 
Union, Mr. Talmage, of New York, offered the fol- 
lowing proviso : " Provided that the further intro- 
duction of slavery or involuntary servitude be pro- 
hibited, except for the punishment of crimes whereof 
the party shall have been convicted, and that all 
children born within said State after the admission 
thereof into the Union sha5l be free at the age of 
25 years." This raised a storm, which was only 
quieted for a time in the year following by the 
Missouri Compromise. This came about by an 
attempt to pass the bills to admit Missouri and 
Maine as States together, in one bill, restricting 
slavery in them. The measure which was passed 
eventually was the prohibition of slavery from the 
rest of the Louisiana accession north of the 36° 30' 
north latitude. During this year Florida was ceded 
by Spain, and the eastern boundary of Mexico was 
fixed at the Sabine River, thus transferring Texas, 
which was debatable ground as to whether or not 
it came to the United States with the Louisiana 



THE POST-COISTSTITUTIONAL HISTORY. 165 

purchase, to Spanish rule as part of the nego- 
tiation which resulted in the Florida purchase. 
The actual exchange of ratifications, however, did 
not take place until 1821. In 1821 Monroe entered 
upon his second term. During that year the Mis- 
souri struggle came up again on the application of 
Missouri for admission, after the passage by her of 
a State Constitution. During that year Henry 
Clay, by reason of his great services as pacificator 
between the North and the South, became a recog- 
nized leader in American politics. 

The message of Monroe to Congress in 1823 
announced for the first time the doctrine of oppo- 
sition on the part of the United States to in- 
tervention on the part of European governments 
in the affairs of states and governments other than 
the United States on the North American con- 
tinent, claiming a sort of protectorate in that 
particular for the United States, at least in so far 
as to insist against non-intervention of European 
powers in the affairs of governments on the North 
American continent. This doctrine has become 
known as the "Monroe doctrine," and was ex- 
pressed in these terms : "We owe it, therefore, to 
candor and to amicable relations existing between 
the United States and those powers (the European 
pov/ers) to declare that we shall consider any 



166 CONSTITUTIONAL HISTOEY. 

attempt on tlieir part to extend their system 
to any portion of this hemisphere as dangerous 
to our peace and safety. With the existing 
colonies or dependencies of any European power 
we have not interfered, but with the Govern- 
ments which have declared their independence, 
we have, on great consideration, and on just 
principles, acknowledged, we could not view 
any interposition for the purpose of oppressing 
them or controlling in any other manner their 
destiny as any other than an unfriendly dis- 
position towards the United States." This was 
called out by what was supposed to be the 
design of the Holy Alliance to extend a fostering 
care to the young American republics of Spanish 
origin. 

The year 1824 witnessed the first sectional 
struggle upon the tariff question, the North and 
Middle States voting in favor of a protective tariff, 
the South voting solidly against it. 

At the end of Monroe's administration the pub- 
lic debt had been reduced from $123,000,000 to 
$90,000,000, and the country was in a state of re- 
markable prosperity. 

In the autumn of 1825 John Quincy Adams, 
a Republican, was elected President of the United 
States by the House of Eejoresentatives, in con- 



THE POST-CONSTITUTION^AL HISTORY. 1G7 

sequence of a failure to elect by the Electoral 
College. John C. Calhoun was elected Vice-Presi- 
dent. 

An attempt was made during the early years of 
President Adams' administration to amend the 
Constitution as to the mode of electing the Presi- 
dent of the United States by having him elected 
directly by the people in Congressional districts. 
Although the proposition met with approval in 
both branches of the Federal Legislature, it 
failed to obtain the necessary two-thirds vote in 
both branches, and therefore no further steps were 
taken. 

In February, 1826, the republics of South America 
made a j^roposition to the United States to deliber- 
ate with them upon measures for common advan- 
tage, at a Congress to be held at Panama. This 
led to serious opposition on the part of the 
South, for the reason that as some of the South 
American republics had recognized the equality of 
the negro by admitting him to citizenship, it was, 
as they claimed, an indirect way of recognizing 
negroes as citizens. The debate upon this pro- 
position intensified the feeling in Congress on the 
slavery question, and was the clearest possible 
demonstration that the Missouri Compromise, which 
was intended forever to allay all bitterness upon 



168 CONSTITTJTIOlSrAL HISTOEY. 

tliis subject, fell sliort of what was expected from 
it. The feeling of mutual distrust between the 
Noi'thern and Southern States was still further in- 
creased by the tariff legislation of 1828. The 
duties were made higher, and the people of South 
Carolina petitioned their Legislature " to save them 
if possible from the conjoint grasp of usurpation 
and poverty." They declared that the citizens of 
South Carolina would be condemned to work as 
tributaries of the Northern and Middle sections of 
the Union under such tariff legislation. The Leg- 
islature of Georgia protested against the tariff act 
in 1829, and the Legislature of South Carolina 
during the same year made a solemn protest against 
the same measure. 

Andrew Jackson was elected President of the 
United States in 1828, with Calhoun again as Vice- 
President during his first term, and Martin Van 
Buren as Vice-President during his second term. 
General Jackson in his inaugural address stated 
that the popular sentiment declared in a manner 
too legible to be overlooked, the task of reform to 
be the duty of the administration. This, as inter- 
preted in practice, meant that he was to remove 
the office-holders of the former administration, and 
during the first year of his administration he made 
upwards of seven hundred removals from office on 



THE POST-CONSTITUTIONAL HISTORY. 169 

political grounds, without including subordinate 
clerks, whereas during the forty years preceding 
there had been but sixty-four removals. This 
system of wholesale removal, not on the ground of 
the unfitness of the occupant for the position, but 
because his views were not entirely in harmony 
with the administration, on matters which but re- 
motely, if at all, affected the duties of his office, 
inaugurated the "spoils " system in American poli- 
tics. Subsequently upon every change of Presi- 
dential incumbents, by the election of chiefs of 
party differing from the party then in power, a 
decapitation of public officials took place, so that it 
became an accepted principle as to tenure of office 
in the United States, that appointments were for 
the four years only during which the President 
was elected, and whether the appointment was to 
continue thereafter depended entirely upon the 
accident whether there would either be a subse- 
quent term for the same Presidential incumbent, or 
whether the same party would remain in power, 
and therefore the same influences which caused the 
appointment could be kept at work to continue the 
incumbent in his position. 

In his very first message to Congress General 
Jackson recommended an amendment to the Con- 
stitution, giving to the people the direct election 
8 



170 CONSTITUTIONAL HISTOEY. 

of the President. No steps, however, were taken 
by Congress to submit that question for ratification 
to the people. 

The nullification doctrines, by which is meant the 
doctrine of the right of the States to refuse obe- 
dience to laws of the United States when they are 
supposed to be inimical to their interests, were 
openly avowed by some of the Southern States, nota- 
bly South Carolina, and by the then Vice-President 
of the United States. Mr. Calhoun was the recog- 
nized chief of the party of nullification, and gave to it 
whatever intellectual impulse and theoretical basis 
it had. The feeling between President Jackson and 
the Vice-President upon this subject became so 
marked, that in March, 1831, the entire Cabinet, 
with the exception of the Postmaster-General, re- 
signed. 

The charter of the United States Bank once more 
expiring by limitation, the President of the United 
States took a determined stand against its re- 
newal. In his annual message, he said : " Nothing 
has occurred to lessen in any degree the dangers 
which many of our citizens apprehend from that 
institution as at present organized." 1831 also 
witnessed the organization of the Mormon settle- 
ment at Kirtland, and also in Missouri. 

During the session of 1832 the Senate and House 



THE POST-CONSTITUTION^AL HISTOEY. 171 

of Kepresentatives passed a bill to re-charter the 
bank of the United States, but the President vetoed 
it, and the vote of two-thirds of both branches 
could not be obtained to pass the act over the 
President's veto. 

In November of the same year, South Carolina 
passed an act to nullify the tariff bill of Congress on 
the ground that it was an unconstitutional measure, 
and in December of the same year, the President 
issued a proclamation to warn the citizens of South 
Carolina from engaging in acts of resistance, sent 
troops to Charleston under General Scott to enforce 
the laws, and stated in his declaration that if South 
Carolina could nullify the revenue laws of the 
United States, every other State could do so, and 
therefore no revenue could by any possibility be 
collected, as all imposts must be equal. In January 
following. President Jackson published his nulli- 
fication message, and there was danger of an im- 
mediate conflict between the State of South Caro- 
lina and the United States Government, which 
was avoided only by a compromise on a modi- 
fication of the tariff of 1828 ; the duties were 
annually reduced one-tenth for seven years, at 
the end of which time all of the excess of the 
duties above twenty per cent, should be equally 
divided into two parts, and one part struck off at the 



172 CO]SrSTITUTIONAL HISTOET. 

end of one year and the otlier at the end of the fol- 
lowing year ; so that at the end of nine years all 
duties should be reduced to twenty per cent, on 
value. It was declared that this act was to be per- 
manent. The bill passed both Houses, and allayed 
the discontent, and prevented at that time the ne- 
cessity for resort to arms. 

During the recess of Congress, after his inaugu- 
ration for the second time in 1833, Jackson removed 
the deposits from the United States Bank. This 
caused the bank, as a matter of retaliation, to con- 
tract its loans, v/hich in turn, with other causes, 
produced a commercial crisis, and great financial 
distress, which continued down to 1838. In the 
interval, the United States Bank suspended pay- 
ment, and finally became insolvent. 

During Jackson's administration there were 
three parties in the United States : the Democratic, of 
which Jackson was at the head ; the Anti-Masonic, 
and the National Republican. 

The old Republican party had before that time 
changed its name to the Democratic party, and was 
technically known as the Democratic-Republican 
party, by which name it has preserved its organiza- 
tion down to the present time. 

Martin Van Buren became the nominee of the 
Democratic party towards the e^d of the Jackson 



THE POST-COlSrSTITUTIONAL HISTORY. 173 

administration, and tlien for the first time the "Whig 
party made its appearance as an offshoot of the 
National Republican party — the name Whig, for 
the last named party, appeared for the first time in 
an election in 1834. 

During the administration of Jackson the United 
States debt was substantially extinguished. When 
his administration commenced the public debt 
amounted to $58,500,000, and when it ended it 
amounted to but $291,089. The debt was not 
wholly extinguished, simply because the bonds 
were not handed in for payment. The exports of 
the United States had risen from $72,000,000 to 
$128,000,000, at the end of his administration, and 
the imports from $74,000,000 to $190,000,000. 

The division of parties at this time arose 
mainly from the difference of construction of the 
powers of the United States Government, and was 
in another form the continuation of the struggle 
which commenced before the Constitution of the 
United States was framed, between the powers of 
the States and of the United States, and after it 
was adopted the contest continued upon the con- 
struction to be given to the Constitution of the 
United States. It will be remembered that at the 
time of the formation of the Constitution a large 
proportion of the leading and influential citizens of 



174 CONSTITUTIOJS'AL HISTOEY. 

the country were opposed to tlie merging of the 
State sovereignties into that of the United States 
under the form in which this was accomplished by 
the Constitution of the United States. After the 
Constitution was adopted and the power of the 
United States grew both at home and abroad, and 
the prosperity of the community developed, this 
form of opposition was entirely extinguished, but 
was transmitted into a strict construction of the Con- 
stitutional powers granted. "When the Kepublican 
party, however, came into power, the Federalists 
or Loose Constructionists, for the purpose of limit- 
ing the power of their opponents, found themselves 
in a position to be compelled to adopt almost wholly 
the language of their former opponents, and thus 
strangely enough became the Strict Constructionists, 
in the earlier period of the Bepublican success under 
Jefferson to the extent that in the Hartford Conven- 
tion they asserted in as radical a form as was subse- 
quently asserted by some of the Southern States, the 
right of the States to nullify Congressional legisla- 
tion if they deemed it unconstitutional. The success 
of the war of 1812 caused the Federalist party so 
utterly to fall into disgrace that it became extin- 
guished as a party organization. The desire to 
use the credit of the United States for purposes of 
\nternal improvement, and the growing influence of 



THE POST-CONSTITUTIOlNrAL HISTOEY. 175 

the manufacturing classes, caused a new organiza- 
tion — tlie Whig organization — to arise, which again 
in its tenets and its tendencies resembled the Fed- 
eral party. They claimed the right to use the funds 
of the Union for purposes of internal improvements, 
and to have the United States subscribe or loan its 
credit for the purpose of internal improvements in 
various States, and to use the revenue system of 
the United States for the purpose of encouraging 
domestic manufactures, to grant subsidies and to 
build up manufacturing industries of the nation at 
the expense of the commercial and agricultural in- 
terests. 

At the time of the inauguration of Martin Yan 
Buren as President of the United States, the con- 
test which theretofore had been carried on between 
Congress and the President, by the passage of bills 
favoring internal improvements and which were 
vetoed by the President, continued, so that at the 
time of the opening of the loth administration the 
lines between the Whigs and Democrats were 
closely drawn upon those questions. Van Buren's 
administration began under circumstances of extreme 
financial distress. Excessive issues of paper money 
had caused reckless speculation and raised the 
prices of lands far beyond their actual value, and 
the sudden calling in of loans in the spring of 1837 



176 CONSTITUTIOlSrAL HISTOET. 

resulted in a suspension of specie payments by tlie 
banks which precipitated a commercial and financial 
panic of the utmost severity. The President then for 
the first time recommended a plan of sub-treasury 
deposits, for the purpose of preventing at any future 
time a further copartnership between the Govern- 
ment and the banks, and to have for the Govern- 
ment substantially its own depository and disburs- 
ing agents throughout the United States. In 1840, 
by a small majority, this independent treasury 
scheme became successful ; but indications were 
already but too abundant that the Whig party, 
making capital of the financial and commercial dis- 
tresses of the Yan Buren administration, and at- 
tributing it largely to the fact that the Government 
refused to lend its aid to internal improvements, 
and that it had bankrupted the banks in consequence 
of the organization of the independent treasury 
plan, was gaining ground in the United States, and 
would probably obtain control of the Government 
at the next Presidential election. In 1839 the Abo- 
litionist, or Anti-Slavery party, made, for the first 
time, Presidential nominations. At the Presidential 
election in November the "Whig electors were elect- 
ed throughout the United States, except in two 
Northern and five Southern States. In these the 
Democratic electors were chosen. The nominees 



THE POST-CONSTITUTIOlSrAL HISTOET, 177 

of the Whig party, Gen. Harrison and Jolin Tyler, 
were elected respectively President and Vice-Presi- 
dent of the United States. Just one month after his 
inauguration, President Harrison died. This was 
the first time that a President died in office, and 
the Yice-President, John Tyler, under the Consti- 
tution became the chief Executive officer for the 
unexpired term. Mr. Tyler was known at the time 
of the election not to be strongly in sympathy with 
the Whig party, and he was placed upon the 
ticket as a matter of concession to the Southern 
element and with the view of catching Democratic 
votes. The breach between him and the party that 
elected him was precipitated almost immediately 
after his accession to the Presidential chair, by his 
veto of the bill to incorporate the fiscal bank of the 
United States. 

The Whig party had succeeded in the presiden- 
tial election, upon the platform of the reestablish- 
ment of a national bank and its promise to pass in- 
ternal improvement bills. The veto of the bill 
caused a conference between the President and the 
leaders of the House and of the Senate, to bring about 
an agreement as to a bill that he would consent to. 
Such a bill was drawn, and it was claimed that it re- 
ceived the approval of the President ; but after its 
passage he vetoed it, in consequence of which his 

8* 



178 COlSrSTITFTIOlSrAL HISTORY. 

wtiole Cabinet, with tlie exception of Mr. Webster, 
resigned. The President was then thrown entirely 
into the hands of the Democratic party, and the 
Whigs who had the majority in Congress, re- 
garded him as an antagonistic and democratic 
President. 

The northeastern boundary controversy, which 
was at that time one of the questions in dispute 
between America and Great Britain, was adjusted 
between Lord Ashburton and Webster by the treaty 
known as the Ashburton treaty, in 1842. 

During the years 1843 and 1844 the annexation 
of Texas became an important party question. 
The South, apprehensive of the development of 
population in the northwestern territory and 
the rapid formation of free States, which threat- 
ened to endanger the system of slavery, deter- 
mined with the aid of the President to extend its 
territory in the southwest and to annex Texas 
— out of which many States could be carved — to 
the United States. Texas had been in part 
settled by adventurers from the States. Its 
original Spanish population was largely merged 
by intermarriage with Americans, and many of 
the Mexicans were driven back toward the Rio 
Grande. On the 2d of March, 1845, the bill to 
annex Texas was finally passed. Florida was 



THE POST-CONSTITUTIONAL HISTORY. 179 

also admitted as a State, tlms adding to the slave 
power. 

In November, 1844, James K. Polk was elected 
President of the United States, he being a Demo- 
cratic candidate, and George M. Dallas Vice-Presi- 
dent. The newly-elected President, on taking his 
seat, committed himself fully to the policy of Tyler 
with reference to Texas, and immediately ordered 
possession to be taken of the territory by the troops 
of the United States. General Taylor took command, 
and j)nshed its occupation almost to the Rio Grande. 
Without any formal declaration of war, a conflict 
was precijDitated between the Mexican troops and 
the American troops, and in the midst of the ex- 
citement arising from the news of this clash of arms 
between the Mexican troops and the United States 
army, in which the army of the United States proved 
successful. Congress declared that a state of war 
existed between the United States and Mexico, and 
was called upon to make the necessary appropria- 
tion for carrying it on with effect. The army of 
occupation was then superseded by an army under 
General Scott, to take possession of the City of 
Mexico itself, and after a series of uninterrupted 
victories, Mexico was captured and peace dictated. 
A treaty was formed between the Mexican Congress 
and the American Commissioners, by which the 



180 COTiTSTITUTIOlSrAL HISTOEY. 

independence of Texas was recognized and its an- 
nexation to tlie United States confirmed. This 
extended tlie territory of the United States on tlie 
southwest to the Eio Grande Eiver from El Paso 
to its mouth. lu addition to this, tJie territory of 
New Mexico and Upper California was ceded. For 
this cession of additional territory the United States 
paid Mexico $15,000,000, and assumed the payment 
of some $3,500,000 due to Mexico from certain citi- 
zens of the United States. By a subsequent pur- 
chase, for $10,000,000 more, known as the Gadsden 
purchase, an additional territory was acquired. 

During the period of the war with Mexico for 
the acquisition of Texas, the Anti-Slavery party, in 
consequence of the aggressive spirit shown by the 
South, and the determination to extend the slavery 
territory, became more and more formidable, and 
on the debate on the Wilmot proviso — a provision 
to prohibit slavery from all territory to be ac- 
quired from Mexico — it was apparent that a con- 
siderable accession of strength to the anti-slavery 
element had already been made among the United 
States representatives. 

The tariff struggles, the war with Mexico, and 
the question of the limitation of slavery in the newly 
acquired territory, in all of which the South pre- 
vailed, were the main political questions which 



THE POST-CONSTITUTIONAL HISTORY. 181 

divided parties during the Polk administration. In 
1846, the Oregon question was settled by a treaty 
with England, by which the boundary line was fixed 
at 49'' north latitude, instead of 54° 40', as originally 
claimed by the United States. In 1848, the Demo- 
cratic party nominated Lewis Cass for President, 
and Benj. F. Butler for Vice-President. The 
Whig national convention nominated as the can- 
didate for President Gen. Zachary Taylor, who 
divided the honors of the brilliant success of 
the Mexican war with Gen. Scott, and Millard 
Fillmore, as candidate for Vice-President. The 
parties, as declared in their platforms at that time, 
divided on the free trade and protection question, 
the Democratic party insisting that no more revenue 
should be raised than is required to defray the ne- 
cessary expenses of the Government ; that justice 
and sound policy forbade the federal Government 
to foster one branch of industry to the detriment of 
another, and that Congress had no power under the 
Constitution to interfere with or control the question 
of slavery ; on the other hand, the Whig party, at a 
ratification meeting held in Philadelphia, claimed 
as a part of its fundamental principles, no exten- 
sion of slave territory by conquest ; protection to 
American industry, and the loan of the credit of the 
United States for the purpose of internal improve- 
ments. An offshoot of the Democratic party, known 



182 COlSrSTITUTIONAL HISTOEY. 

as the Free Soil party, at the sstme time nominated 
Martin Van Buren as President, and Gen. Dodge of 
Wisconsin as Vice-President. Gen. Dodge declin- 
ing Charles F. Adams was selected in his place. 
Its division from the Democratic party arose mainly 
on the question of extension of slavery to the ter- 
ritories ; they agreed with the Whigs upon the 
question of river and harbor improvements, that 
they were objects of national concern, and that it was 
the duty of Congress, in the exercise of its consti- 
tutional power, to provide therefor. In this tri- 
angular fight, the Whigs succeeded in electing 
their President, and consequently Gen. Taylor, of 
Louisiana, and Millard Fillmore, of New York, 
were respectively inaugurated on the 4:th of March 
1849, President and Vice-President of the United 
States. 

The total population of the United States at that 
time v/as a little upwards of 23,000,000. The acqui- 
sition of new territory by the United States Govern- 
ment reopened the old Missouri Compromise ques- 
tion, and it was resolved, mainly through the 
instrumentality of the Southern leaders that the 
territories should themselves determine whether 
or not they should recognize slavery or prohibit it 
within their own borders, in the event of their 
becoming States. This right was known as " squat- 



THE POST-COlSrSTITUTIONAL HISTOEY. 183 

ter sovereignty." The newly arrived immigrant 
in any territory, usually occupying lands of the 
United States which by improvements became his 
own under the laws of the United States, was 
known as a " squatter." The South calculated 
upon the superior activity of its ov/n people, and 
somewhat upon their aggressiveness, to hold in 
awe and check the more peaceably inclined set- 
tlers from the Eastern States and from Europe, 
and that by the terrorism that thus could be exer- 
cised they could secure a large proportion not only 
of new States closely contiguous to the territory of 
the old slave States, but also invade some of the 
Northwestern territory, and thus prevent the power 
of free States from spreading iu that direction. 
The first shock of disappointment to this calcula- 
tion came through the finding of gold in California. 
This caused a migration from the Eastern States 
to the Pacific coast of so many strong and fearless 
men that, within the very territory that the Southern 
leaders supposed to be their own, and which would 
have been devoted to slavery by law under the old 
Missouri Compromise had it not been repealed by 
the votes of the Southern Congressmen, the estab- 
lishment of slavery was utterly outvoted and routed. 
California made application as a free State, by a 
majority so overwhelming that its admission in 
1850 could not be rejected by the then pro-slavery 



184 CONSTITUTIONAL HISTOET. 

Congress of the United States. Howeyer, tlie 
Southern feeling of disappointment at the result 
of this mistaken calculation, together with the sus- 
picion that it had been largely due to the rapid 
accession of strength of the Anti-slavery party 
both in numbers and in influence, caused another 
compromise bill to be passed in the interest of slav- 
ery, by which it was agreed to form the Territo- 
ries of Utah and New Mexico without any refer- 
ence to slavery, to admit California as a free State, 
and to pay Texas $10,000,000 for the surrender of 
its claims to the Territory of New Mexico. A most 
stringent bill was also passed to return fugitives 
from justice and persons escaping from the service 
of their masters. The slavery question entered 
upon a new phase on the introduction of a bill to 
organize the Territory of Nebraska in February, 
1853. During the few years intervening from 1850 
to 1853 great bitterness arose in some of the 
Northern States on the subject of the Fugitive Slave 
bill. The j)!"© visions of the bill gave to United 
States commissioners the power, wi-thout judge or 
jury, to return fugitives from justice, and prohibited 
State courts from issuing writs of habeas corpus for 
the purpose of testing the question of the right to 
the return of the claimed fugitive, denying to the 
States the right to try the title of the master to the 



THE POST-CONSTITUTIONAL HISTORY. 185 

slave. Some of tlie States refused to enforce tlie 
law, notably Massachusetts, and even passed laws to 
prohibit its enforcement. When the political parties 
met in 1852 the question of slavery was the main 
one before them. Both the Whig and Democratic 
j)arties vied with each other in assurances to protect 
slavery within the States, the Democratic party 
declaring that Congress had no power under the 
Constitution to control this " domestic institution " 
of the Southern States, and that all the efforts of 
the Abolitionists to induce Congress to inter- 
fere with questions of slavery had a tendency to 
diminish the happiness of the people and endanger 
the stability and permanency of the Union, and 
they pledged themselves to abide by and faithfully 
execute the acts known as the Compromise measure 
settled by Congress, and more especially the Fugi- 
tive Slave act. The Whig convention declared that 
the series of acts of the Thirty-second Congress, 
known as the Fugitive Slave laAv, are received and 
acquiesced in by the Whig party in the United 
States as a settlement in principle and substance 
of the dangerous and exciting questions which they 
embrace, and they promised that so far as they 
were concerned they would maintain them and 
insist upon the strict enforcement thereof. There- 
fore, upon the main question of slavery, the Demo- 



183 co]srsTiTUTiO]srAL history. 

cratic and Whig parties, tlie two leading par- 
ties, expressed almost in the same terms their 
determination to carry out faithfully the Com- 
promise measures of 1850, and to enforce the 
Fugitive Slave law. The only protest of any 
national party against this subserviency to the 
slave power came from the Free Soil Democracy, 
which nominated Mr. Hale, of New Hampshire, and 
Mr. Julian, of Indiana, respectively for President 
and Yice-President, and in their platform declared 
that the Fugitive Slave laws were repugnant to the 
Constitution, to the spirit of Christianity, and to the 
sentiment of the civilized world. They insisted that 
no permanent settlement of the slavery question 
could* be looked for except in the practical recogni- 
tion of the truth that slavery is sectional and freedom 
national. The Democratic party, in 1852, suc- 
ceeded in electing its President by an overwhelm- 
ing majority, and Franklin Pierce and William K. 
King, the nominees of that party, were inaugu- 
rated on March 4th, 1853, respectively as Presi- 
dent and Yice-President of the United States. 

During the early part of President Pierce's 
administration, the organization of Kansas and 
Nebraska as Territories was the all-absorbing sub- 
ject of discussion. The proximity of Missouri to 
both of those territories, Missouri being a slave 



THE POST-COJSrSTITUTIONAL HISTORY. 187 

State, made tlie Soutlaern people feel themselves 
secure that they could control the organization of 
the Territories if to the Territories were left the 
determination of the question of slavery or not within 
their limits, and a large number of pre tended settlers, 
known as border ruffians, immediately migrated 
from Missouri into Kansas and Nebraska, and or- 
ganized a territorial government in favor of slavery. 

The bill abrogating the Missouri Compromise of 
1820, known as the Kansas-Nebraska bill, was 
passed in May, 1854, and for several years the so- 
called " Kansas war " was carried on between the 
partisans of slavery and anti-slavery — a war not 
merely in name, but which involved considerable 
bloodshed. Congress recognized the pro-slavery 
territorial constitution, known as the Leavenworth 
Constitution, and the Governors who were appointed 
by President Pierce were appointed with the view 
to influence these Territories to carry out the pro- 
slavery programme by the adoption of pro-slavery 
Constitutions for their admission as States. 

During 1854 the claim was made that the Com- 
promise bill of 1850 had abolished the compromise 
of 1820, and that therefore the new States to be 
admitted north of the Missouri line could be invaded 
by the slave power as well as those south of the 
Missouri line. The debates during Pierce's admin- 



188 COlSrSTITUTIONAL HISTOET. 

istration in Congress resulted in a division between 
Northern and Southern Wliigs, the Northern "Whigs 
calling themselves anti-Nebraska men. The North- 
em Democrats were evenly divided on the Kansas- 
Nebraska measure, and the Southern Democrats 
acted as a unit. During the same period a new 
party came into existence, known as the Know- 
Nothings, which was subsequently called the 
American party. As its name indicates, it was 
opposed to elevating to office any but natural born 
American citizens, or those who had lived long 
in the country. It was strongly anti- Catholic in 
feeling. For a shoi-t time it became a national 
party, and in 1855 carried nine of the State elections, 
and in 1856 nominated Presidential candidates. In 
1856, the anti-Nebraska party adopted the name of 
the Republican party. It was largely composed of 
the elements of the Whig party. Almost the whole 
of the Northern Whig element entered into it, and 
it obtained considerable accession of strength from 
the Democratic party, as it was the only formidable 
organization which resisted at that time the de- 
mands of the slave power as to the spread of slav- 
ery into the new Territories. 

The conflict in Kansas created a very considerable 
amount of bitter feeling throughout the United 
States, more especially in the Eastern States, where- 



THE POST-COXSTITUTIONAL HISTOEY. 189 

in tlie crj of " bleeding Kansas " caused a large 
amount of money to be collected, which was ex- 
pended in arms, and sent to the settlers of Kansas 
and Nebraska. The Territory of Kansas was divided 
into a pro-slavery and a free State division, and on 
the 5th of September, 1855, a convention at To- 
peka repudiated all that had been done in favor of 
slavery, claimed that it was the act and deed of Mis- 
sourians alone, and determined to form a State gov- 
ernment in the interest of freedom. In 1856 the fi-ee 
State settlers elected State officers under the Topeka 
Constitution. President Pierce, however, recognized 
the pro-slavery Legislature, and placed United 
States troops under the orders of the Governor to 
enforce the pro-slavery laws of the territory. 

During the discussions on the Kansas question 
in Congress Senator Sumner, the leading Senator 
from Massachusetts, made a speech which was 
deemed personally offensive to Senator Butler, of 
South Carolina, and a representative by the name 
of Brooks, also from South Carolina, struck Senator 
Sumner with a cane, whilst he was seated in his 
chair in the Senate, with such violence that the 
Senator suffered several years from the effects of 
the blow. This incident naturally increased the 
bitterness between the two sections. 

Pending the struggle in Kansas a new election 



190 CO]SrSTITUTIO]SrAL HISTORY. 

for President of the United States was held, under 
■which again the Democratic party was successful. 
James Buchanan, of Pennsylvania, and John 0. 
Breckenridge, of Kentucky, were respectively 
elected President and Vice-President of the United 
States, and took their oaths of office on the 4:th of 
March, 1857. Within a few days after the election 
of President Buchanan, the Supreme Court of the 
United States, in the Dred Scott case, decided that 
negroes had no rights or privileges but such as 
those that the political power of the government 
might choose to grant to them, and that Congress 
had no more right to prohibit the carrying of slaves 
into any State or Territory than it had to prohibit 
the carrying of horses or other property, v/hose 
secured possession was guaranteed by the Constitu- 
tion. The dissenting justices, on the other hand, 
claimed that it was only by State laws that the 
negro was made property, but by the law of na- 
ture and of nations, and even by the Constitution 
of the United States, there was no recognition of 
the slave as property, and that it was only by vir- 
tue of municipal law, the authority of which was 
confined to the territorial boundary of the State, 
that any human being could be regarded as 
property, and the rights of the owner were limited 
to the territory where this special kind of property 



THE POST-CONSTITUTIONAL HISTOEY. 191 

was recognized. This decision startled the North- 
ern people of the United States, and a renewed 
effort was made to wrest Kansas and Nebraska from 
the slave power. The South knew that if in this 
struggle Kansas and Nebraska were taken from 
them, their hopes successfully to compete against 
the Northern States, and to maintain the slave 
power rested either in the acquisition of Cuba by 
the Union as a territory out of which to form new 
States, the annexation of part of Mexico, or the 
whole of it, so as to carve out new slave States, or, 
on secession from the Union, and the organization 
of an independent government in which slavery 
could be secured from every possible attack. 

The Kansas struggle lasted until after the elec- 
tion of Mr. Lincoln as President of the United 
States. Two constitutions had been passed in 
Kansas, one known as the Lecompton Constitution, 
with slavery, which claimed to have 6,000 majority'; 
but the free State settlers refused to vote on the 
ground that they were not permitted to vote against 
the Constitution, the only form of ballot being one 
either for the Constitution with slavery or for the 
Constitution without slavery. The President of the 
Senate insisted upon the admission of Kansas as a 
slave State. The House was willing to admit Kan- 
sas with the proviso that the Constitution should 



192 COliq^STITIJTIOTfAL HISTOET. 

again be submitted to the popular vote. No agree- 
ment was arrived at, and some time in 1859 a new 
Constitution was submitted to the people in Kansas 
known as the Wyandotte Constitution, which pro- 
hibited slavery, and received a majority of 4,000 in 
its favor. 

The Kansas struggle, lasting as it did through 
the whole of Buchanan's administration, caused 
party lines to divide sharply in 1860 upon the ques- 
tion of slavery. All other questions were merged 
in that all-important one. The Southern States, 
although they had control of the General Govern- 
ment, felt themselves beaten at every point by the 
growth of a popular sentiment against slavery which 
proved superior to their astuteness as politicians, 
and superior to the influence exercised by the more 
militant character of their population, aided by 
threats of secession and war in the event of the 
failure on the part of the North completely to sub- 
mit to their dictates. Although they succeeded 
in forcing measures through Congress, they were 
visibly gradually losing strength. The Democratic 
party met in Charleston, South Carolina, on the 
23d of April, 1860, and divided there into two wings. 
At this distance of time the difference between the 
two wings of the Democratic party on the slavery 
question does not seem to have been a very serious 



THE POST-CONSTITUTIOlSrAL HISTORY. 193 

one. The Soutliern wing affirmed its confidence in 
the correctness of the Dred Scott decision, and in 
terms said that neither Congress nor the Territorial 
Legislatures had a right to prohibit slavery in [^the 
Territories. The Douglas Democrats simply re- 
fused to admit the conclusion, although they as- 
serted the premises of the Dred Scott decision, 
said that it was just and final, and that they would 
abide by it. The Douglas platform was adopted, and 
many of the Soutliern delegations then withdrew. 
The Democratic convention, after tlie withdrawal of 
the delegations, nominated Stephen A. Douglas for 
President and H. V. Johnson for Yice-President. 
The seceding delegates nominated J. C. Brecken- 
ridge, of Kentucky, and Joseph Lane, of Oregon. 
A Constitutional Union party — a new name for the' 
former American party — nominated John Bell and 
Edward Everett. At the election in November 
every Northern State, with the exception of New 
Jersey, elected Republican electors, and thus se- 
cured the election of Lincoln as President of the 
United States upon a platform declaring that free- 
dom was the normal condition of the Territories, 
which Congress was bound to preserve and defend. 
Immediately after the election of Lincoln was placed 
beyond doubt, the South Carolina Legislature, in 
1S60, called a State Convention, which passed almost 



194 CO]S-STITTJTIO]^AL HISTOEY. 

unanimously an ordinance of secession, and ap- 
pointed commissioners to treat with tlie other slave 
States for a withdrawal from the Union, and to 
treat with the United States Government for a di- 
vision of the national property and of the public 
debt. By the end of February, 1861, Florida, Mis- 
sissippi, Louisiana and Texas, as well as Georgia 
and Alabama, had likewise passed ordinances of 
secession. Tennessee, North Carolina, Arkansas, 
Kentucky and Missouri were still wavering and 
awaiting the current of events. President Buchanan, 
when Congress met, detailed the condition of affairs 
in the South, denied the right of secession, but ex- 
pressed himself as powerless to prevent the pas- 
sage of the resolutions, and intimated doubts as to 
the power of Congress to make war upon the States. 
The session was mainly occupied with attempts at 
compromise. The Crittenden Compromise was 
one which was most before Congress, and had the 
greatest chance of success. The main provisions of 
the bill were that slavery should be prohibited 
north of parallel 36" 30', recognized and never in- 
terfered with by Congress south of that line, and 
that the Federal Government should pay for all 
slaves rescued from officers after arrest. These 
provisions were intended to be made part of the 
Constitution of the United States, and were never 



THE POST-CONSTITUTIONAL HISTOIIY. 195 

to be altered or amended by tlie Union as it exist- 
ed. The Republicans in Congress refused to vote 
for this measure, and the Southern members there- 
fore refused to entertain it. In February, 1861, a 
Peace Congress was convened at the request of the 
Virginia Legislature, and met at Washington. It 
adopted and reported a number of resolutions for 
congressional action, all of which Congress re- 
fused to -entertain. An amendment to the Consti- 
tution, however, was recommended by Congress, 
which forbade Congress ever to interfere with 
slavery in the States. Meanwhile a convention of 
delegates from the seceding States was called, which 
met at Montgomery, and organized the Government 
which was known during the war as the Confeder- 
ate States of America. It in many respects copied 
the Constitution of the United States ; it in words 
recognized slavery; it extended the term of the 
President's office ; it prohibited tariffs for any pur- 
poses other than revenue. Jefferson Davis and 
Alexander H. Stephens were chosen President and 
Yice-President. A Cabinet was appointed. Depart- 
ments were organized, and immediate preparation 
was made to carry on war. 

As a sufficient number of Southern delegates had 
now withdrawn to give to the Eepublicans an un- 
doubted majority in both Houses of Congress, 



196 CO]!TSTITUTIO]!q-AL HISTOEY. 

Kansas was admitted immediately witli a free Con- 
stitution ; Nevada, Colorado, and Dakotah were 
organized as Territories, a new tariff law was 
passed, mainly in tlie interest of the Eastern States 
and Pennsylvania, as the opposition of the free- 
trade Southern members being withdrawn, all 
organized opposition to a protective tariff was for 
the time being at an end. 

This brings us to the era of the administration 
of Mr. Lincoln and the breaking out of the war. 
President Lincoln was inaugurated on the 4th of 
March, 1861. His inaugural message expressed a 
determination to relieve Fort Sumter, and as- 
serted in unambiguous terms the right of the Union 
to prevent its own destruction. The attempt to 
resupply Fort Sumter in Charleston harbor pre- 
cipitated an attack on April 13th, 1861, by South 
Carolina, which inaugurated the Civil "War. Fort 
Sumter surrendered on the 14th of April, and on 
the 15th the President issued his first call for 
troops, which v/as immediately responded to by 
the Northern States. An insignificant remnant 
of the Democratic party remained true after hos- 
tilities actually began to the idea that secession 
was a constitutional right, and that there was no 
power in the United States Government to coerce 
a State. Within a fortnight after the breaking out 



THE POST-COTN^STITUTIOFAL HISTORY. 197 

of the war, Virginia, North Carolina, Tennessee and 
Arkansas threw in their fortunes with the South ; 
Delaware, Maryland, Kentucky and Missouri, re- 
mained, with small majorities, loyal to the Union. 

Early during the war the question of the status 
of the slave became a very important one. Gen. 
Fremont, having control of the Missouri depart- 
ment, proposed to free the slaves of Missouri ; 'but 
his order to that effect was overruled by the Presi- 
dent. Gen. Butler was more successful by a happy 
euphemism in declaring the slaves to be contraband 
of war, wherein he had the support of the Secre- 
tary of War. 

In September, 1862, President Lincoln issued a 
proclamation that in the event of the rebels re- 
fusing to return to their allegiance by the 1st of 
January, 1863, he would then issue an emancipa- 
tion proclamation. Accordingly, on the 1st of Jan- 
uary, 1863, during a period of extreme depression 
and doubt as to the ultimate success of the Union 
arms in suppressing the rebellion, the Federal 
armies having met in 1862 with many serious re- 
verses, the proclamation was issued by which the 
slaves in the States then in rebellion were declared 
to be free. The slaves held in States not in re- 
bellion were not affected by this proclamation, an 
amendment to the Constitution being necessary to 



198 COK-STITUTIOIS-AL HISTOEY. 

accomplisli that result as to the " property " of loyal 
citizens in those States. The emancipation proc- 
lamation, after declaring the districts within which 
it was to be operative, was couched in a spirit of 
humanity to prevent an insurrection of slaves by 
enjoining them "to abstain from all violence, un- 
less in necessary self-defence," and promised them 
that " such as were fitted would be taken into the 
armed service of the United States, to garrison 
forts, stations, and other places, and to man vessels 
of all sorts in said service." 

The difficulty in creating the necessary loans, in 
the early period of the war, and a fear to dampen 
the ardor of the North by burdensome taxation, 
caused the passage of a Legal Tender bill, by which 
the currency of the United States had an enforced 
circulation — a measure of doubtful constitution- 
ality, but which, as the Supreme Court of the 
United States subsequently declared, was a justifi- 
able exercise of the war power. A national banking 
system was created, by which the banks were re- 
quired to invest their capital representing circula- 
tion in United States loans, so" that a large amount 
of the United States Government bonds was com- 
pulsorily absorbed in that manner. 

During the four years that the war lasted, two 
States were admitted into the Union : "West Virginia, 



THE POST-CONSTITUTIONAL HISTORY. 199 

carved out of Virginia proper, and Nevada. In 
1864 the Fugitive Slave law was repealed. At- 
tempts were made in February, 1865, by the Presi- 
dent to make peace with the Southern States on 
the condition of their return to the Union. Al- 
though no authorized version of the negotiations 
has ever been given to the public, it was conceded 
that with the exceptions of consent to the aboli- 
tion of slavery, and submission to the authority 
of the Union on the part of the South, every con- 
dition that the Southern States could ask would 
be submitted to by the North, involving possibly 
the adoption of the Southern debt and the reim- 
bursement to the Southern slaveholder for slaves 
lost. But the Southern leaders madly rejected 
this proposition. 

The war at that time, in consequence of Sherman's 
march through the Southern States, and the pres- 
sure upon Gen. Lee's army exercised by Gen. 
Grant's forces, was rapidly drawing to a close in 
favor of the Union. 

Lincoln was in 1864 reelected President of the 
United States, and inaugurated on the 4th of 
March, 1865. 

In April, 1865, the surrender of General Lee, 
followed quickly by the surrender of General John- 
son, practically ended the war. On April 14 Presi- 



200 CONSTITUTIONAL HISTOEY. 

dent Lincoln was assassinated at a theatre in 
"Washington, and Andrew Johnson, who had been 
elected as Yice-President, became, on the 15th of 
April, the President of the United States. This 
unfortunate assassination of a President in whose 
wisdom and moderation the people of the United 
States had very great confidence, added materially 
to the difficulty of dealing with the Southern States 
then lately in rebellion. To admit them as States in 
the full possession of their sovereignty, with the 
negroes disfranchised, although liberated, was to 
place the negro once more in the power of his 
former owner, and therefore to some degree a 
violation of the implied pledge given by the United 
States to the negro race, both by the emancipation 
proclamation and by the use of thousands of able- 
bodied negroes in the army and navy, that the 
promise of freedom should be followed by protect- 
ing them from oppression thereafter. In any event, 
the Government was called upon to exercise 
a guardianship to prevent their reenslavement 
or such deprivation of political rights as would 
amount to a perpetual condition of servitude of the 
race. On the other hand, the United States Con- 
stitution had made no provision for the condition 
of affairs which the war had brought about. To 
extend the right of suffrage at once, without a 



THE POST-CONSTITUTIONAL HISTORY, 201 

period of education intervening, to the lowest typo 
of a laboring population, made by the system of 
slavery an entirely irresponsible class of human 
beings, was full of danger to all vested property 
interests and to civilization itself in the States 
where they preponderated. The right of suffrage 
was always regulated by the States themselves ; the 
States, as sovereigns, had a right to the organization 
of their own governmental functions without inter- 
ference by the federal power except that general 
provision which made it the duty of the national 
Government to see to it that the form of government 
adopted by the States was republican in character. 
For the purpose of exercising a guardianship over 
the negroes, and to prevent their being unjustly or 
harshly dealt with by the Southerners who were 
formerly slaveholders, the Freedmen's Bureau was 
organized immediately after the close of the war, 
with agents in every Southern State, for the pur- 
pose of adjudicating upon the rights of the negroes 
and to prevent their being wronged. 

President Johnson, who had spent his adult 
life in a slave State, and who was a strict construc- 
tionist of the Constitution, refused to recognize the 
methods of reconstruction which Congress saw fit 
to adopt ; he appointed provisional Governors for 
the States lately in rebellion, and declared his pur- 
9* 



202 CONSTITUTIONAL HISTOEY. 

pose that their terms of office should endure only 
until a permanent government could be organized. 
The passage of the Freedmen's Bureau bill, which 
was vetoed by the President, and of the Civil Eights 
bill, which was also vetoed, but both of which, 
nevertheless, being enacted by a congressional 
overriding of the vetoes, created an antagonism be- 
tween the Republican majority in the legislative 
body and the President, which soon ripened into an 
open rupture. 

The fourteenth amendment was adopted by both 
houses in June, 1865. The Civil Eights bill de- 
clared freedmen citizens of the United States. The 
reasons against this declaration were sound and 
cogent, because it admitted to the rights of citi- 
zenship a large number of persons whose prior 
condition of servitude and enforced labor made 
them extremely dangerous citizens. As the right 
to vote implies not only the right of the voter 
to protect himself against the aggression of oth- 
ers, but also involves the power, through the in- 
strumentality of taxation, which is placed in the offi- 
cers elected by the voters, to confiscate the prop- 
erty of others, it was apprehended by many that 
demagogues and adventurers would win the free- 
men by illusory promises of personal benefits to 
give them their votes, and that, by the creation of 



THE POST-CONSTITUTIONAL HISTOEY. 203 

public debts and the exercise of the power of tax- 
ation, they would mercilessly confiscate the prop- 
erty of citizens subjected to their sway. 

Another Freedmen's Bureau bill passed both 
houses in the summer of 1866. This was also 
vetoed by the President, but finally passed over the 
veto and became a law. When Congress met in 
December, 1866, the conflict between the Legislative 
department of the Government and the Executive 
became so acrimonious, measures passed by Con- 
gress were so constantly vetoed by the President, 
that a determination was formed on the part of 
Congress to remove the President by impeachment. 

In January, 1867, a bill was passed which took 
from the President the power to proclaim a general 
amnesty. The Army appropriation bill contained a 
provision by which the President was virtually 
divested of his command of the army, by maldng it 
imperative that all his orders should be given to 
the General of the army who could not be removed 
without the previous approval of the Senate. The 
General of the army at that time was General Grant, 
who was relied upon as antagonistic to President 
Johnson and loyal to Congress. 

Nebraska was admitted that year as a State. A 
new bill was passed to provide governments for the 
States which lately had been in insurrection. The 



204 COiq^STITUTIOWAL HISTOEY. 

States were divided into military districts, each 
Under tlie government of a General. This military 
government was to continue until a State Conven- 
tion chosen by all those who had previously been 
declared by Congress to be citizens, and therefore 
negroes included, should form a State government, 
and ratify the fourteenth amendment- The ratifi- 
cation, therefore, of the fourteenth amendment was 
a compulsory process, and can scarcely be deemed 
the voluntary act of the States which had previously 
been in rebellion. 

The Tenure of Office bill, passed over a veto, took 
from the President the power of removal without 
the consent of the Senate, but enabled him to 
suspend until the Senate could act, and declared 
it to be a high misdemeanor to make any such re- 
moval except with the consent of the Senate. 

During the summer following this Congress, 
Edwin M. Stanton, who had been Secretary of War, 
was asked by the President to resign. Stanton 
refused to resign. He was thereupon suspended 
under the provisions of the Tenure of Office bill, and 
Gen. Grant was appointed Secretary of War ad 
interim. On the 14th of January, 1863, the Senate 
refused to agree to Stanton's removal. Gen. Grant 
vacated the office, and Stanton was reinstated. The 
President thereupon again removed Stanton and 



THE POST-CONSTITUTIONAL HISTORY. 305 

appointed Gen. Thomas in his place. Thomas 
accepted, but Stanton refused to quit. Both the 
Senate and House being in session, and the Pres- 
ident having clearly violated the provisions gf the 
Tenure of Office bilh the House resolved to imi)each 
him before the Senate on this and otlier but less 
tenable grounds, and on the 5tli of March the trial of 
the impeachment was begun. This was the first and 
only impeachment of a President of the United States 
under the power granted by the Constitution. In the 
Senate the vote stood 35 for conviction and 19 for ac- 
quittal. The requisite two-thirds majority, therefore, 
not having been obtained, a verdict for acquittal was 
entered, and the impeachment trial fell through. 

The political contest for the Presidency turned 
mainly upon the reconstruction legislation. Grant 
and Colfax were nominated by the Republicans in 
1868 ; Seymour and Blair by the Democrats. The 
election resulted overwhelmingly in favor of the 
Eepublican party. On the 20th of February fol- 
lowing the fifteenth amendment to the Constitution, 
guaranteeing the right of suffrage without regard 
to race, color, or previous condition of servitude, 
was adopted by Congress. On the following 4th 
of March Grant and Colfax were sworn into office. 

During President Grant's first term of office the 
reconstruction of the Southern States proceeded 



206 coisrsTiTUTioisrAL histoey. 

rapidly under tlie plan laid down by Congress. The 
greatest part of the time of Congress was taken up 
in legislation to secure to the negroes their rights, 
armed conflicts having taken place at various parts 
of the Southern States between negroes and whites, 
arising from the enforced equality of the former 
and the inveterate prejudices of the latter against 
their recognition as citizens, and to the un- 
fortunate selections of Governors and legis- 
lators in the reconstructed States, by which men 
known as " carpet-baggers," adventurers from the 
Northern States, who went to the South for the pur- 
pose of securing office, and in the troubled condition 
of affairs foisted themselves into positions of import- 
ance and trust, which they vilely and outrageously 
abused. As under the amendments to the Constitu- 
tion the debts of the States in rebellion incurred for 
the purposes of the war, and the whole of the Con- 
federate national debt were, irrevocably repudiated 
and extinguished, the States v/ere at the time of the 
reorganization free from all debts, except such as had 
been created anterior to the rebellion. This offered 
in the creation of new public debts a great quarry 
for plunder to the legislative and executive officers 
who had, during this period, become possessed of 
political power ; and debts were created in a most 
reckless manner ; bonds were issued amounting to 



THE POST-COlSrSTITUTIOlSrAL HISTOET. 207 

many millions of dollars, for wliicli the States never 
received any return, and tlie proceeds of wliicli 
were in the main embezzled and wasted. This 
condition of affairs created a righteous, but for the 
time being helpless, indignation, on the part of the 
Southern propertied classes, as these Governors 
and legislators not only rested their tenure to offices 
upon the votes of the most ignorant and depraved 
part of the population of the Southern States, but 
also had at their beck and call the army of the 
United States to enforce obedience as against citi- 
zens who had a stake in the community, and who 
were compelled quietly to submit to seeing part of 
their property confiscated by the taxing power, and 
the remainder mortgaged by the debt-creating 
power. 

The settlement by arbitration of the claims of 
the United States against England for the depre- 
dations committed during the civil war by the 
Alabama and other Confederate cruisers fitted out 
in English ports, was the most important step of 
the Grant administration as to foreign policy. 

The incidents connected with Gen. Grant's first 
administration, of corruption on the part of the 
office-holders in the Southern States, and the class 
of people to whom he gave his confidence in the 
Northern States, created considerable reaction 
against the plan of Congressional reconstruction 



208 COJS^STITUTIOJN^AL HISTOET. 

as practically carried out, and divided the Ee- 
pTiblican party into two divisions. Horace Gree- 
ley, tlie editor of tlie Tribune, was at the head of 
the wing against the administration party, and Gen. 
Grant remained the representative of the bulk of 
the Eepublican party. In 1872 the Republican 
party renominated Grant for President, and 
Wilson for Yice-President ; and the Liberal 
Bepublicans nominated Horace Greeley, of New 
York, for President, and B. Gratz Brown, of 
Missouri, for Vice-President. The Democratic 
party, at a subsequent convention, adopted the 
Liberal Republican candidates ; but the election 
resulted overwhelmingly in favor of the Republic- 
ans, and President Grant's second term of office 
began. 

One of tTie instruments of oppression that had 
been devised with much ingenuity for the pur- 
pose of perpetuating the power of the adven- 
turers who succeeded in obtaining control of the 
Government in the Southern States was what was 
called a Beturning Board, a commission which 
was originally appointed by the Governors of the 
States with or without the consent of the Legisla- 
tive department, which had the power to perpetuate 
its own existence by filling by cooptation vacancies 
in its own board, and which had the power to re- 
ject the votes of whole districts where, according 



THE POST-CONSTITUTIONAL HISTORY. 209 

to the finding of the commission, intimidation had 
been exercised. This power substantially gave to 
these Returning Boards the determination of an 
election ; however large the majority adverse to 
their party might be in certain districts, the vote 
could be wholly rejected on the mere ground of 
intimidation, of which they themselves were to be 
the judges. 

During Gen. Grant's second term of office, the ' 
question of the resumption of specie payments and 
the payment of the national debt in gold became 
the source of most of the conflicts in Congress. 
The veto by Gen. Grant of a currency bill by which 
an attempt was made on the part of a majority in 
Congress to increase the irredeemable currency of 
tlie United States, marked the turn of the tide 
toward correct principles of finance, and gave a 
strong impetus to a regression to a sound basis for 
the national currency by its eventual redemption 
in coin, and of a full and complete recognition, not 
in words only, of the right of the public creditor 
to payment in specie. During the war the cur- 
rency of the United States fell, as calculated in 
specie, to about thirty-six cents on the dollar — gold 
stood at one time at 280. At the time of the sup- 
pression of the rebellion the premium on gold had 
fallen to below 30. As gold commanded an in- 
creasing premium, commodities and land had a 



210 COl^STITUTIONAL HISTOEY. 

proportionate nominal increased valuation, and 
many mortgages on Western lands were easily paid 
off in depreciated paper wliicli could not have been 
so readily discharged in coin. Under this fic- 
titious prosjoerity, a return to specie payments, 
accompanied by a return to normal prices, seemed 
like a wide-spread calamity, and many an inhabi- 
tant of the United States sincerely thought that an 
irredeemable currency was the source of prosper- 
ity, and a return to specie payments the sacrifice of 
real benefits to a sentimental sense of honor in 
favor of the public creditor. 

It was not perceived that considerable of an infla- 
tion would be caused by the return to specie pay- 
ments, as $250,000,000 in coin which were hoarded 
were added to the circulation. The notion that a 
return to specie payments would cause financial 
distress was shared by so large a proportion of the 
people, that it became questionable whether within 
any reasonable period the United States notes 
would be exchangeable for coin. It was only 
through the persistent efforts of political econo- 
mists that one constituency after another was won 
over to sound financial views, and interference with 
the law fixing the day for a resumption of specie 
payments was prevented. 

The crisis of 1873, followed by a period of extreme 



THE POST-CONSTITUTIONAL HISTORY. 211 

depression of values in 1874, 1875, 1876, added very 
considerably to the so-called Greenback or Infla- 
tionist influence, and was an additional cause in de- 
laying a return to specie payments. Congress had 
declared in 1875 that on the 1st of January, 1879, 
the resumption of specie payments should take 
place, and on the day appointed the result was 
achieved. This happy result was aided by fortune 
more than by the wisdom of the politicians, the coun- 
try having in 1877 experienced, by reason of an ex- 
traordinarily good crop and a failure of the Euro- 
pean crop, a revival of industry, followed in 1878 by 
a further increase of national wealth by another 
extraordinarily good crop and another failure of 
crops in Europe. These two events turned the tide of 
gold in the direction of the United States, producing 
the double effect of both increasing the facilities of 
the United States Government to resume, and greatly 
reducing the ranks of the adversaries to resumption. 
In 1876 the democrats nominated Samuel J. 
Tilden, of New York, and the Republicans Euther- 
ford B. Hayes, of Ohio, for the office of President 
of the United States. The election of 1876— Colo- 
rado and Nebraska having in the interim become 
States in the Union — required for a choice 185 
electoral votes. Mr. Tilden had 184 unquestioned 
electoral votes. Mr. Hayes had 165 unquestioned 



212 CON^STITUTIOlSrAL HISTORY. 

electoral votes. Tlius Mr. Tilden required but one 
vote to constitute Him President, and Mr. Hayes 
twenty. Tlie votes that were questioned were one 
from Oregon, tlie Governor of wliicli certified to 
one Democratic and two ^Republican electors 
arising from a disqualification on tlie part of one of 
the electors, altliougli unquestionably the disquali- 
fied elector had been elected; seven from South 
Carolina, as to the vote of which there was at first 
a very considerable amount of doubt, and was made 
the subject matter of litigation within the State, 
the vote, however, was certified for the Bepublican 
electors ; four from Florida, and eight from Louis- 
iana. The popular majority in Louisiana and 
Florida was undoubtedly in favor of the Demo- 
cratic electors. It was only through the instru- 
mentality of the machinery known as the Return- 
ing Board that the vote could be changed into a 
Republican legal majority. The Returning Board 
of Louisiana was composed of men whose former 
action had already been discredited by a Republi- 
can Congress under an investigation carried on by 
a Republican committee. The electoral vote of 
Florida was declared by the State authorities them- 
selves to have been illegally cast for the Repub- 
licans, and the State, by the only means in its 
power, deliberately recalled the vote of the State 



THE POST-COKSTITUTIONAL HISTOET. 213 

before the vote was counted, and also duly com- 
missioned Democratic electors, whose votes were 
cast in favor of Mr. Tilden. 

In Louisiana the manipulations of the Returning 
Board forms one of the most humiliating chapters of 
fraud in American politics ; the certification in favor 
of the Louisiana Republican electors, though regular 
in form, was created by an instrumentality which, 
if generally adopted throughout the United States, 
would make a farce of popular elections. Although 
these manipulations of results gave a colorable 
right, before the vote was declared, to Mr. Hayes as 
the elected President of the United States, yet Mr. 
Tilden, who had unquestionably received by far the 
greater popular vote, would, in the absence of any 
Returning Board machinery, have undoubtedly been 
declared the President of the United States. In 
this situation, both parties claiming the Presidency, 
it was apprehended that another civil war might re- 
sult if no means were found by which this condition 
of affairs, unprovided for by the Constitution, could 
be temporarily dealt with. The Constitution gives 
to the President of the Senate the right to receive the 
electoral votes and to open them, and that then they 
shall be counted in the presence of the Senate and 
House. Prior legislation had formulated the manner 
in which this proceeding should be conducted. The 



214 CONSTITUTIONAL HISTORY. 

House was Democratic, the Senate was Eepubli- 
can. Tlie House, therefore, would inevitably refuse 
to count the Presidential votes in the manner in 
which the Senate would count them, would reject 
the Republican votes of Louisiana and Florida, and 
the one vote from Oregon, and would either declare 
Mr. Tilden elected President of the United States 
by counting the rival certificates from such States, 
or declare that no election had taken place and 
proceed to elect under its constitutional right, which 
would have resulted in Mr. Tilden's election. At this 
juncture of affairs a compromise was made between 
the parties by the passage of what is known as the 
Electoral Commission act, by which five Senators, 
five Representatives, and five Justices of the Su- 
preme Court of the United States were constituted a 
court to whom all the votes upon which the two 
houses could not agree were to be referred, the de- 
cision of which was to be final, unless overruled by 
both houses. • This commission stood in all its deter- 
minations eight to seven, there being eight Eepub- 
licans and seven Democrats, and thus counted in 
Hayes and Wheeler as President and Vice-Presi- 
dent of the United States by determining all the 
disputed questions in favor of the Republican party. 
The attitude of both political parties during this 
contest must have appeared to the cynical observer 



THE POST-CONSTITUTIONAL HISTORY. 215 

as a strange exhibition of the slight hold that prin- 
ciples have upon political parties under the pressure 
of personal ambition and party dictation. The Re- 
publican party was compelled, from the necessity of 
the situation during the war, to construe the Consti- 
tution in the most liberal spirit and in the loosest 
possible Avay to meet the stretches of power neces- 
sary to bring the States in rebellion, by means 
of an armed force, back to the Union ; to deny the 
rights of States against the rights of the United 
States, and to limit the State j)Ower to the narrow- 
est compass. The Democratic party, on the other 
hand, was, from its position on the slavery question 
before the war, from its position of quiet antagonism 
during the war, its position in oj)|)osition to the re- 
construction legislation of the United States Gov- 
ernment during Bepublican administration siibse- 
quent to the war, driven to take a position as ad- 
vocate of extreme State rights doctrines. lu the 
contest, however, before the Electoral Commission 
the parties suddenly changed positions on what was 
supposed to be an ingrained difference of party 
policy between them. The Republicans became 
the most strict constructionists of the Constitution 
as to State rights. They claimed that the official 
return of a sovereignty of the magnitude of a State, 
however brought about, could not be inquired into 



316 CONSTITUTIONAL HISTORY. 

by tlie limited and circumscribed sovereignty of tlie 
United States Government; and even when the 
State of Florida solemnly protested that its return 
had been fraudulently obtained, the members of 
that party declined to review the decision of the 
State when it once had been solemnly asserted. 
The Democrats, on the other hand, claimed the 
right, on the part of the Government of the United 
States, upon so vital a question as the election of a 
President of the United States, to inquire how the 
State's return was made up, and to take cognizance 
of frauds which were practiced in the election, which 
substantially nullified and vitiated the State's action, 
and to reform such if it be in conformity with justice. 

The decision of the Electoral Commission was 
generally acquiesced in for the sake of peace. The 
compromise was deemed final, and Eutherford B. 
Hayes and William A. Wheeler were duly inaugurat- 
ed President andYice President of the United States. 

The Hayes administration fell within a period of 
political tranquillity, and it was also distinguished 
by the high personal character of the Cabinet ap- 
pointments. It received very general support, and 
that administration very largely reaped the advan- 
tage arising from an era of unexampled and 
unparalleled prosperity on which the United 
States then entered by reason of the extraor- 



THE rOST-CONSTITUTIONAL HISTORY. 217 

dinary developments of the Northwest and of the 
mining regions of Colorado, Arizona, Nevada, Utah 
and Wyoming. During this administration there 
was an immense increase of exports, in part caused 
by the failure of the crops in Europe and by the 
developments v\^hich had been made in the railways 
of the country in increasing the facilities and cheai?- 
ening the cost of transportation. Resumption was 
accomplished, and although Congress framed some 
injudicious legislation in favor of the remon- 
etization of silver at a rate below its market 
value, as a sop to the heresies of Greenbackers, and 
as a bounty to OAvners of silver mines, yet on the 
whole the administration of Mr. Hayes, and the con- 
gressional legislation of that period, produced an 
advancement of the public credit, a decrease of pub- 
lic burdens, and set a term to and ended the waste- 
ful, wicked, and corrupt administration of the 
Southern States by the carpet-bag governments. 

The election of 1880, wherein the standard-bearer 
of the Democratic party was Gen. Hancock, and of 
the Republican party Gen. Garfield, resulted in the 
elevation of Gen. Garfield to the Presidential chair, 
by the determining vote of the State of New York. 
The platform of the Republican party in 1880 com- 
mitted that party to the protective tariff which from 

1860 on, was the continuous fiscal policy of the 
10 • 



218 COITSTITUTIONAL HISTORY. 

United States Government. The Democratic party, 
on tlie other hand, had adopted a plank in favor of a 
tariff for revenue only. The chances of the cam- 
paign were decidedly in favor of the Democratic 
party. The suspicion that a wrong had been done in 
the elevation of President Hayes, still lingered in 
the minds of the people sufficiently to lead many 
republicans to desire a rectification of that wrong, 
by the election of a Democratic President in 
1880. Late in the campaign, the Republicans 
issued a series of violently aggressive attacks on 
the free-trade plank of the Democratic party, by 
which it was attempted to be shov/n that the 
prosperity of the United States was largely due 
to the protective policy ; that the manufacturing 
industries would be utterly crushed in the event of 
the Democrats prevailing, and that the laborer 
would be deprived of his hire and his family of 
bread, if the free-trade policy were to be inaugu- 
rated as against the protective policy which it was 
claimed had produced within the twenty years then 
last past such wonderful results in developing the 
prosperity of the nation. The Democratic party, 
instead of boldly combatting these utterly unfounded 
assertions, had become demoralized by the twenty 
years' exclusion from power, and was so false to 
principles, and so anxious to succeed that the 



THE POST-CONSTITUTIOlSrAL HISTORY. 219 

sacrifice of all tlie ballast in the way of principle 
it still had in the hold of its ship, was determined 
upon by its then leaders. This caused its standard- 
bearer to issue a letter at a moment of panic saying 
that he was personally in favor of protection, what- 
ever the platform might say, and caused the Demo- 
cratic speakers to hasten to explain away what they 
supposed to be a damaging element of their platform, 
though the real element of their strength — the rev- 
enue reform plank — and to outbid the Republicans 
for support as a protectionist party. This act lost 
them votes from Republican free-traders, who were 
willing to vote for the Democratic ticket, and gained 
them no adherents from the Republican ranks. A 
vulgar forgery of a letter was issued by the party 
against Garfield, attempting to convict him of a pol- 
icy favoring Chinese immigration. To add to the 
Democratic calamity, the Democratic party had 
allowed its organization in the city of New York, 
where its strength was greatest, to fall into the 
hands of " bosses " and juntas of politicians who 
were at all times willing to sacrifice for the sure 
gains of the local offices the larger and more prob- 
lematical results of a national victory, and as the 
State and Municipal elections are held simultane- 
ously with the national election in the State of New 
York, a small change of votes caused by these 



220 COlSrSTITUTIOlSrAL histoet. 

sinister and personal interests, was sufficient to 
give by a small majority the thirty-five electoral 
votes of the State of New York to the Republic- 
ans instead of to the Democrats, for whom in the 
computations theretofore made it had generally 
been counted. The result was the election of Mr. 
Garfield as President of the United States, whose 
term of office, beginning on the 4th of March, 1881, 
came to a sudden termination at the hands of a 
malignant assassin, on the 19th day of September, 
1881. Thereupon Chester A. Arthur, who had 
been elected Yice-President upon the same ticket 
with Mr. Garfield, became the President of the 
United States. 

"With the settlement of the slavery question, re- 
construction, and return to specie payments, the 
Eepublican party finished its work. It lives now 
on the record of its past history. The Democratic 
party, except as to the free-trade principle, to which 
it can scarcely be said to be faithful, has now no 
distinctive principle from the Bepublican party. It 
still insists in its platforms upon State rights, but 
as such rights are not really assailed, it can scarcely 
be deemed a vital question in American politics. 
Indeed the caucus system, thirst for office and 
popularity, have so demoralized both great politi- 
cal parties, that their dissolution is a mere ques- 



THE rOST-COi^STITUTIOTiAL HISTORY. 221 

tion of time. Upon causes deeper than any which 
the present leaders of these parties are likely to 
forecast or anticipate, will depend the reorganiza- 
tion of American political parties upon political 
issues of the future, involving principles asserted 
on the one side, and denied by the other. 



CHAPTER YI. 

CUEEENT QUESTIONS PEODUCTIVE OP CHANGES IN THE 
CONSTITUTION. 

It is, of course, impossible to fore tell witli accuracy 
the changes time may bring forth, which will mate- 
rially modify and affect the organic law of the United 
States. Whatever development the United States, 
in the near future, will experience will necessarily 
come from within and not from outward pressure. 
Unlike the nations of Europe, the United States 
has no neighbor sufficiently powerful to affect its 
policy or to modify its constitution. It requires 
no standing army; and so long as England performs 
the police duties of the seas, it requires but little 
of a navy. It has no occasion to fear any serious 
foreign intervention, and it is therefore left freer 
than any other nation within the period of modern 
civilization to pursue its own development. In that 
respect its position is sid generis ; nothing resemb- 
ling it as a national power has ever appeared on the 
face of the earth, except the condition of savage 
222 



CUEREKT QUESTIONS. 223 

tribes and insular nations, not brought witliin tlie 
influence of civilization, as to tlie severance of po- 
litical interests from that of all other peoples. The 
good that is within it can, therefore, come to its ripest 
development: the evil thaL it contains, unless cor- 
rected, will bring its direst sinister consequences. 
The influence of foreign nations upon it are entirely of 
an industrial, intellectual, and commercial character. 
A combination of circumstances beginning with 
the war of 1861, intensified by the extension of 
the means of intercommunication between the 
States by the railway and the telegraph, in con- 
junction with the natural and artificial waterways 
of the country, have made of the United States a 
solidified nation, within the generation last past, 
to an extent that was not anticipated by its found- 
ers, a consolidation much more complete than 
the theory of American institutions would seem 
to justif}'. S!:ate lines exist and will continue to 
exist for all purposes of penal and municipal 
law, except in so far as they may, as already 
shown in these pages, be overridden by the para- 
mount law of the Union. Yet the traveler who 
starts in a railway train at Boston and remains in 
the same palace car until he arrives at San Fran- 
cisco, travels through twelves States and Territo- 
ries without noticing any State line, and rapidly 



224 coisrsTiTUTiojsrAL histoet. 

comes to regard the wliole domain as his one 
country. The tendency of the times is necessarily 
to weaken the power of the State on the alle- 
giance of the individual, and lead to a greater and 
greater consolidation and unity of interest of the 
whole United States. This tendency is still further 
accelerated by the inability on the part of the 
individual States to deal with the economic and 
social questions which necessarily arise from the ex- 
tension of the means of intercommunication between 
the States, and the necessity for the existence of a 
general power to deal with them. Already the States 
have felt and have, to a considerable degree, ac- 
knowledged their inability to deal with the rail- 
way and the telegraph question. The decisions of 
the Supreme Court in recent years, recognizing the 
inability on the part of the States to deal with these 
questions, have considerably extended the jurisdic- 
tion of this court over transportation routes lying 
partly within one State and partly within another, or 
upon a river running through two or more States. In 
the so-called Granger cases the Supreme Court has 
asserted jurisdiction in cases of all inter-State com- 
merce in which goods or passengers are taken from 
one State beyond its own borders within the domain 
of another. This tendency will continue to consoli- 
date the power of the United States upon all Indus- 



CUEEENT QUESTIOlSrS. 225 

trial and commercial matters as to wliicli tlie States 
liave a common interest, and for the purpose of put- 
ting that question at rest so that the United States 
may deal with that subject precisely as it deals with 
the subject of bankruptcy, a constitutional amend- 
ment will, in all probability, be adopted and acted 
upon, granting to the United States Government in 
express terms that which it already claims to have 
by implication, so that it may deal fearlessly and 
effectively with the important problems that arise 
from the organization of great monopoly interests 
which are incident to modern methods of the trans- 
portation of goods and passengers. 

With the exception of the Pacific railways, all 
the railway corporations of the United States were 
chartered by the States, and though many of them 
have thousands of miles of line traversing many 
States, they claim their powers under the separate 
charters of the different States through which the 
lines run, and are in theory only amenable to the 
States covered by their lines of rails. Inequalities 
of rates, however, creating unjust discriminations 
between individuals of different States, and exer- 
cising a function analogous to that of taxing arbi- 
trarily and without control, has and does create a 
power within the nation so great that it threatens 
sooner or later to dispute the fact with the 
10* 



226 CONSTITUTIOi^rAL IIISTOEY. 

authorities of the United States as to whether the 
railway or the governmental power is the greater. 
The State political machinery has to a very con- 
siderable degree already succumbed to the exercise 
of this power, and therefore to make head against it 
it will be found necessary to clothe the general 
Government with sufficient attributes of sovereignty 
to deal with the subject adequately. 

That this necessity runs counter to a very cor- 
rect theory of decentralization, and that the liberty 
of the individual is endangered by all centraliza- 
tion of power, is a truth to which thoughtful 
students of political history cannot shut their eyes. 
But precisely as in Germany a false decentraliza- 
tion of power had to be succeeded by a nation hav- 
ing centralized national power, with the view to in- 
telligent and proper decentralization ; so in time it 
may be necessary in many particulars to disregard 
State lines and the localizing of power resulting 
from such State lines, for the purpose of more in- 
telligent and more effectual decentralization in those 
particulars wherein it is beneficial, and also to se- 
cure centralization in those matters wherein decen- 
tralization involves danger to the commonwealth. 

The development of the taxing power arising 
from the war quadrupling the number of office- 
holders in the United States within the period from 



CURRENT QUESTIOlSrS. 227 

1860 to 1870, and increasing as it did the ordinary 
expenditures of the United States Government, in- 
dependently of interest on the public debt from 
$60,000,000 in 1860 to $220,000,000 in 1867, has in 
itself aggravated certain evils which only were easy 
to be borne at a period of time when the United 
States had a debt of $64,000,000, representing per 
capita $1.91 in 1860, instead of a debt of $3,000,- 
000,000 in 1865, with a per capita charge of $78.25. 
From the time of Jackson's administration ap- 
pointments went by favor, not by merit, and that 
which was favor originally, degenerated into a claim 
of right dependent upon political activity in favor 
of the successful candidate. Appointments were 
made to high offices not because A. B. was specially 
qualified for the office, but because A. B. was a 
skillful or efficient worker in the campaign which 
preceded the successful election of the incumbent* 
This system not only fills the public offices of the 
United States with inefficient and corrupt officials 
in high station, and keeps out of political life the 
capable men, who are disinclined to perform party 
work as a condition precedent to accession to office, 
but it also created the same system under those 
officials as to all their subordinates ; and as from the 
Presidential office down to the lowest political 
official, tenure of office is depended upon the con- 



228 CO]SrSTITUTIOE"AL HISTOEY. 

tinuation of the administration, at every recur- 
ring election these ojEficials strive by personal 
activity at the polls, and in the organization of the 
machinery of elections and nominations, to con- 
tinue in power the political party to which they 
belong, so as to preserve their personal incumbency 
of the office, and they were to a very large degree, 
and still are, regularly assessed to pay the political 
expenses of a campaign. Millions of dollars are 
thus raised from office-holders in the United States 
at every recurring Presidential election, or even 
local elections, in the interim, which may have a re- 
mote effect upon the Presidential elections, to pay 
the expenses of campaigns and to create a " corrup- 
tion fund " for the purposes of the party to which 
these office-holders respectively belong. So in- 
tolerable has this abuse become that for some 
years tentative efforts have been made, even by 
administrations, to correct some of the more fla- 
grant evils of this system, and during the adminis- 
tration of General Grant a Civil Service Commis- 
sion was organized to deal with the subject. The 
influence of party, however, was too powerful for 
any permanent success during General Grant's 
presidency, and the Civil Service Commission came 
to an end. 

As President Hayes was elected upon a platform 



CUERENT QUESTIONS. 229 

wliich pledged his administration, in tlie event of 
the success at the polls, to the inauguration of a 
system of civil service, steps were inaugurated 
shortly after the 4:th of March, 1877, to create a 
system of promotions by merit and permanence in 
the tenure of office. The contest, however, of the 
politicians against it, and the somewhat half- 
hearted manner in which the system was pressed 
by the administration itself, prevented any great 
progress being made in that reform during the ad- 
ministration of President Hayes. 

The Kepublican party again pledged itself to 
civil service reform in the j)latform of the conven- 
tion which nominated Mr. Garfield, and although 
during the early period after his inauguration 
much of the time of the administration was taken 
up by personal wrangles between senators and the 
President on the question of the exercise of the 
Presidential prerogative of appointments to office 
without dictation from senators, which operated to 
prevent any considerable progress being made in 
the introduction of a harmonious system of civil 
service, yet from the character of President Gar- 
field it was a reasonable assumption that during 
his administration some decided step in advance 
would be taken looking toward the practical intro- 
duction of this reform. 



230 CONSTITUTIONAL HISTOP^Y. 

The Democratic party discovered that during 
the contest for the Presidency it was confronted by 
a vast army of office-holders, contributing a vast 
fund, through assessments on their salaries, to the 
sinews of war of their adversaries, to prevent the 
accession of Democrats to power. Such assess- 
ments were paid because the office-holders knew 
that their official existence would be terminated in 
the event of a change of administration under the 
domination of an adverse party. This fact brought 
about a conversion of the Democratic party in favor 
of some reform of the civil service which would take 
that important element of opposition out of future 
contests to prevent its accession to power, so 
that in the United States both political parties 
are now pledged to the introduction of civil 
service reform, and a bill introduced by Senator 
Pendleton, a life-long Democrat, which secures 
fixity of tenure in all the lower grade of offices, is 
in a fair way to become a law; and there is but 
little doubt that within a few years the public 
service of the United States will be brought more 
in harmony with the condition of public service in 
other civilized countries. 

The evil of the abominable "spoils" system in 
the United States is not so much the incompetency 
of the officers — as the American's adaptiveness en- 



CUEEENT QUESTIONS. 231 

ables him quickly to learn the routine duties of an 
office — nor in the waste of public moneys (because 
in a community so rich in productive power as that 
of the United States the amount which peculation 
can take from it is a burden easy to be borne) ; 
but the main evil is that the "spoils" system de- 
moralizes both parties, and makes contests, which 
should be for principle, mainly for plunder, and 
induces parties, in the hope of an accession of 
strength sufficient to obtain political power, not 
only to lower but absolutely to abandon their 
principles, and to make their platforms conform 
to what they suppose will more rapidly win popu- 
lar success, and thus makes of the quadrennial 
presidential contests, mere scrambles for office. 

Important as it is to secure a reform in the civil 
service of the United Scates, that alone, however, 
even if successful, would not result in any improve- 
ment of a very permanent character in the condi- 
tions of the party systems of the United States. 
The causes which make parties permanent institu- 
tions in the machinery of government of constitu- 
tional monarchies, having like England large bodies 
of persons who are either placed in positions of ex- 
ceptional advantage, like that of the hereditary 
legislators of England, or permanent disadvantage 
like the classes not admitted to the suffrage, are 



232 CONSTITUTIONAL HISTOEY. 

sucli that there "will necessarily, so long as this 
condition of affairs exists, be a party seeking to 
diminish the power of those exceptionally well 
placed and to increase the political powers of 
those who are not admitted to the suffrage. This 
permanent cause for party existence does not pre- 
vail in the United States. And yet party lines are 
drawn as sharply in the United States as they are 
anywhere, and the tyranny of party is in many 
respects greater than anywhere else, because the 
caucus system has permeated it to the uttermost 
degree and created an autocracy of party managers, 
the hold of which will not be entirely shaken off — 
indeed, but slightly loosened — by the introduction 
of the civil service reform. 

That party management in the United States 
becomes more unscrupulous than it does elsewhere 
arises in part from the fact that in the United States 
there is no large leisure class of cultured men who, 
from a sense of duty or because of their large 
financial or property stake in the community, de- 
vote themselves to its political government. The 
absence of such a class and the intensity of occu- 
pation in industrial employments of the commu- 
nity at large, place the management of party in 
the hands of briefless lawyers and unsuccessful 
people in other avocations of life, who, having 



CUEEENT QUESTIONS. 233 

been, as a general rule, eliminated downward from 
other occupations, devote themselves wholly to poli- 
tical intrigue and the perfecting of the political ma- 
chinery. As office, and speculation upon the money 
expenditures arising from the pursuit of office by 
others, through party machinery are their main ob- 
jects, it results in time in a domination of a class 
of politicians, to whom the principles of the party 
are mere cries to catch votes, and who doff and 
don those principles as it suits their convenience 
or their expectations of gain. That both political 
parties contain among their leaders men of a 
higher order of intellect, and that even the politi- 
cal machinery cannot get on without men of that 
stamp, to whom they are compelled to give honors 
and office, is unquestionably true. The character- 
ization of the average politician applies more 
especially to the people who have control of the 
machinery of politics in the large centres of popu- 
lation. This evil condition is promoted and is 
enabled to work its worst results by the system of 
representation now prevalent, with few exceptions, 
wherever representative institutions prevail, viz. : 
that of giving to majorities only in circumscribed 
election districts the right to representation, instead 
of, as far as possible, by some system of minority 
or totality representation, to aim at a representa- 



234 CONSTITUTIONAL HISTOHY. 

tion of tlie whole comnninity. The hold that the 
party managers have upon the voters, who would 
otherwise rebel against their tyranny, is that if the 
voter fails to vote for the candidate they submit, 
he either is compelled to throw away his vote on 
one who has no chance of success, or directly or 
indirectly to aid the promotion to office of some 
one nominated by a party machinery equally 
odious and representing the other side in politics. 
If, on the other hand, in the election of represent- 
atives, small bodies of voters could detach them- 
selves from the main body, and by affiliation with 
other similarly detached bodies of voters within the 
State, succeed in representing one or more electoral 
quotas, as, for instance, in the State of New York, 
with its twelve hundred thousand voters, having 
thirty-three Members of Congress to elect, could 
thus secure one-thirty-third of the voting power of 
the State, these combined detachments could elect 
a representative independent of party, and in this 
way every important phase of popular opinion could 
seek and find its own representation. Parties then 
would represent principles, and the principles not 
be the mere banner or shibboleth of party, hauled 
down and replaced as it suits its convenience, 
and the individual voter would become compara- 
tively independent of party dictation. This would 



CUEEENT QUESTIONS. 235 

act as a solvent of political parties as at present 
constituted ; would retain what in them is useful 
and good, and would utterly prevent the evil 
effects of the caucus system. This reform once in- 
troduced, would fructify into inestimable political 
blessings to the country, as it would make a politi- 
cal career independent of an accidental majority in 
sb district, and secure for that career an entirely 
different class of statesmen and politicians than 
party machinery now brings to the front. The 
civil service reform confessedly will act only upon 
the minor offices within the United States. This 
reform of minority representation would be opera- 
tive for good ia a change in the character of the 
nominees for every important elective office where 
there are more than two persons to be elected, 
and would totally alter the character of political 
parties as at present mischievously constituted. 

Another subject which will presently engage the 
aitention of the American people is one which, 
since 1860, has been driven to the background, 
that of liberalizing its navigation laws and its sys- 
tem of tariff duties. The rate of taxation in the 
United States both as to internal revenue and the 
admission of foreign goods is as yet, it may be said, 
upon a war footing. When the Southern delegates 
to Congress withdrew in 1861, the opportunity was 



236 ' CONSTITUTIONAL HISTOEY. 

immediately seized upon by the protectionists to in- 
augurate a protective system on the pretence that 
the Government required an enormous amount of 
revenue to carry on the war, and that to increase the 
tariff would increase the revenue, as well as in- 
directly afford protection to a larger number of 
home industries. The long-continued adhesion of 
the Southern States to a system of free trade put 
for the time being every advocate of free trade in 
the North during the progress of the war in a false 
position, because it appeared as though he were in 
favor of the South in advocating free-trade theories. 
The fictitious prosperity created by the paper 
currency issued during the war, disguised for the 
time being the evil influence of a protective tariff. 
After the close of the war the paramount questions 
which engrossed the attention of the nation were 
necessarily those relating to the reconstruction of the 
Government of the Southern States, and the return 
to specie payments ; subsequently the depression 
caused by a return to specie payments enabled the 
advocates of a high tariff to attribute the evils which 
came synchronously with contraction, ta contrac- 
tion alone. After specie payment was resumed 
an immediate impetus was given to the prosperity 
of the country by a combination of causes of which 
the return to a sound financial basis was but a part. 



CUKEENT QUESTIONS. 237 

successive good crops, the great tide of immigration, 
and tlie development of the mining industries of the 
Western territory as well as the opening up of vast 
tracts of virgin agricultural lands in the Northwest, 
together contributed since 1876 to enhance the pros- 
perity of the United States beyond all precedent. 
This again concealed from the people the evil effects 
of the tariff legislation, and enabled the tariff advo- 
cates to claim for their vicious system the prosper- 
ity which came despite their system. 

In one respect alone is the evil effect of restric- 
tion so visible that it cannot be attributed to any 
other cause, unaccompanied as it is by any mis- 
leading element of prosperity on the other hand, 
which counteracts it ; and that is, in the complete 
prostration of the shipping interests of the United 
States, and the almost total extinction of its com- 
mercial steam marine engaged in foreign trade. 

The beginning of a change in the restrictive 
legislation of the United States will probably first 
be made herein. The navigation laws will be made 
more liberal; an American register will be able to 
be obtained for ships built in foreign jurisdictions, 
as an effort must soon be made to bring back to 
the United States part of the carrying trade which 
its navigation laws have utterly destroyed. An 
overflowing treasury will be another reason for 



238 CONSTITUTIONAL HISTOEY. 

revising tlie tariff. The plea of necessity for higher 
rates of duty, false as it is because the experience 
of England and France under the Cobden-Cheval- 
ier treaty showed conclusively that the lowering of 
rates of duty increased the revenue, has also fallen 
away. A dangerous move, however, in opposition 
to free trade is already making itself apparent in 
an agitation for the removal of the internal revenues 
of the country, which yield a very considerable 
proportion of the annual income, in the expectation 
that the removal of these internal revenue duties 
will compel the maintenance of a high tariff. One 
of the first steps in that direction had already been 
made under the plea of a free breakfast table, by 
which the duty on tea and coffee was lov/ered, and 
by putting on the free list a large number of ar- 
ticles which the United States do not at all produce. 
Could the Democratic party, which is the tradi- 
tional party of free trade, be relied upon to be true 
to its principles upon that subject, it would be 
reasonable to believe that the very next Congress 
would succeed in producing considerable reform in' 
that particular ; but the result of the recent Presi- 
dential election in which the Democratic party as 
the campaign v/as drawing to a close, became panic 
stricken by reason of the attack upon its revenue 
reform plank in its platform, has so demoralized 



CUREENT QUESTIONS. 239 

many of the so-called leaders of tlie party, that 
already indications are abundant that some of the 
Western leaders of that party will in the future 
Congress be out-and-out protectionists, and at- 
tempt to outbid the Republican party in the claim 
for popular confidence on the ground of willingness 
to afford protection to home industry as against 
foreign competition. A reorganization of parties 
will in all probability result from that question, 
after both great party organizations shall have been 
shattered by it ; and that reorganization would 
best be brought about by a previous introduction 
of the system of minority representation, which 
would assist in the detachment of great bodies of 
voters from party affiliations. 

One of the problems which, though locally confined 
to the Pacific coast, is one with which the Union 
as a whole is called upon to deal, is what is known 
as the Chinese question. Considerable numbers of 
Celestials have been attracted to California and 
the Pacific States generally, and have there proved 
themselves to be very formidable competitors to 
American labor, as the wants of the Chinaman are 
simpler than those of the European and American, 
and his industry is more continuous and machine- 
like than that of his rivals. This has created a 
prejudice against his labor to that degree, that the 



240 CONSTITUTIONAL HISTOEY. 

Constitution of the State of California has been 
amended to prevent corporations from employing 
Chinese labor, and the politics of the Pacific 
States is largely influenced by that question. 

As a mere branch of the protective system, the 
political economist must of course deny to the agi- 
tation against the Chinaman all validity ; but there 
is one argument which is advanced in favor of the 
exclusion of the Chinaman which has force, and 
to which the free-trade argument is no answer. 
The Chinaman refuses to become part of the body 
politic ; no matter how long his residence, he does 
not become a citizen : he expects to be interred in 
his country ; he lives in separate quarters ; and a 
considerable addition to that population creates a 
class of people who are not citizens, and who have 
no permanent interest in the welfare of the com- 
munity in which they reside. That such a class, 
if sufficiently numerous, may become a dangerous 
one to the civilization of a community, is unques- 
tionably true. That to a large degree, however, 
his seggregation from the rest of the community is 
due to prejudice against him, and that in time he 
may become by social recognition, intermarriage, 
and citizenship, when that prejudice subsides, a val- 
uable part of the body politic, is likewise true ; but 
this process is necessarily so slow that the un- 



CURRENT QUESTIONS. 241 

cliecked emigration from that vast and teeming hive 
of humanity, the Celestial empire, will produce 
much disturbance in the political and social condi- 
tion of some of our far Western States. This question 
has already received partial attention by legislation 
by the Congress of the United States which must rely 
for justification upon a basis quite other than the 
false and delusive one of protection to American 
labor which such legislation is supposed to afford, 
A rapid decrease of the public debt takes the 
question of the payment of the bondholder in any 
but the best of faith out of the domain of political 
questions. But there still remains a monetary 
question which has been unfortunately muddled in 
the United States by demagoguery. The ratio of 
silver to gold having been fixed too low by the 
currency laws anterior to the war, silver was prac- 
tically driven out of circalation, gold upon that 
ratio being the cheaper metal. In 1873 Congress 
demonetized silver for all large payments. Subse- 
quently the rapid decline of silver in the markets 
of the world, due, in great part, to the demonetiza- 
tion of silver by Germany and the discovery of 
enormous silver-bearing lodes in the Eocky Moun- 
tains, caused a fear amongst silver producers that 
unless America remonetized silver, silver would fall 
to such an extent as to seriously impair the value 
11 



242 CONSTITUTIONAL HISTORY. 

of silver mines. Tlie original dollar was 416 
grains standard. Its weight was changed in 1837 
to 412i, and its fineness changed to 900 from 892. 
This coinage of 412^- grains was revived in 1878 in 
what was known as the Bland Silver Bill, and it 
was made a legal tender for all debts, public and 
private, notwithstanding the fact that in recent 
years the value of silver had sunk so low that the 
value of the bullion in the dollar of 4122- grains was 
less than eighty-one cents. The amount required 
to be coined under the bill is $2,000,000 per month. 
Thus far no inconvenience has resulted from this 
coinage, because a considerable part of it has been 
absorbed by the necessity for small change. A trade 
dollar also was issued for purposes of Eastern trade 
of 420 grains, but this is not a legal- tender dollar. 
A large accumulation of the standard silver dollars 
is now in the vaults of the treasury, and if no 
amendment is made to the law as to the rate of 
coinage, the question will soon be upon the United 
States whether they desire to have an exclusive 
silver coinage of a depreciated character, as under 
the inevitable effects of what is known as the 
Gresham law, the cheaper currency will drive out 
the dearer. That this effect would be counter- 
acted by a simultaneous remonetization of silver 
by the European governments which have hereto- 



CUEEENT QUESTIONS. -243 

fore demonetized it, tlius creating, for the time 
being, a strong demand for silver, is doubtless true ; 
but as the result of recent conferences on that 
subject gives us no hope in that direction, the Uni- 
ted States Government will either have to demone- 
tize silver or raise the number of grains in the 
silver dollar to a par with gold values, or in the 
future demonetize gold, and have its currency in a 
depreciated condition as compared with the actual 
values of the metal. The question in the United 
States is more complicated and taken out of the 
domain of pure theoretical and philosophical dis- 
cussion on its merits, as to whether a bi-metallic or 
a mono-metallic currency is better for a community, 
by the fact that the persons who were afflicted with 
the greenback mania have become imbued with 
the idea that, as greenbacks have now become 
equivalent to gold, their hope of prosperity lies in 
a depreciated silver currency. It is a curious 
illustration of how fast a hold the fost hoc ergo 
propter hoc error takes upon a community. As the in- 
habitants of the Northwestern States during a period 
of rapid issues of irredeemable paper money were en- 
abled to pay off their debts, and were prosperous in 
so doing, in a currency which incidently depreciated 
rapidly, many of them concluded that the deprecia- 
tion was the source of their prosperity, and that 



244 CONSTITUTIONAL HISTORY. 

therefore any currency tliat depreciates is useful 
to them. 

In the early period of the war — when the Confed- 
erate forces prevailed over the Union armies — 
the organization of the national banks was devised 
as a means compulsorily to float the public debt 
and to create a large home market for United 
States bonds. The State bank systems, which 
theretofore existed for furnishing a currency for the 
people of the United States, were, for good or ill, 
dependent entirely upon the legislation and the en- 
forcement of the laws in the various States of the 
Union. The facilities for counterfeiting these is- 
sues, as they were by no means uniform in device, 
were abundant, and the danger of being imposed upon 
by counterfeit and badly secured bills was very great. 
These causes produced a constant fluctuation in the 
value of such currency, and at any moment of finan- 
cial depression or crisis the currencies of the difler- 
ent States became of different values,and great losses 
were entailed upon the holders by reason of such 
fluctuations. The Government issues of paper 
money, together with the issues of the national 
banks, based upon deposit of United States bonds, 
gave a uniform character and value to the currency 
of the United States. This convenience is so 
great that the national banking system, although 



CUREENT QUESTIONS. 245 

opposed with considerable vigor at first, has been 
accepted in the United States as a remedy for an 
evil much greater than that which it in its turn has 
brought about- There is, therefore, no probability 
of any concerted action against the national banks, 
and the system, with some slight modifications, is 
likely to be as permanent as the national debt. 
This system has also set at rest the question of the 
recharter of a United States bank. There is occa- 
sional and fitful opposition to the issues of the 
national banks, on the ground that the Government, 
by a direct issue of the notes represented by the 
national bank currency, would save the interest 
represented by such issue. The objection, however, 
on the other hand, to give the Government absolute 
control of the issue of the currency, and the sinister 
influence that it may thereby exercise upon the 
money market, is of so much more serious moment 
than the one of mere loss of interest, that thoughtful 
people have, on the whole, acquiesced in aud deemed 
it preferable to maintain the system of national banks, 
rather than to place the monopoly of currency issue 
entirely in the hands of the Government ; and as 
hitherto no loss has been entailed upon the holders 
of national bank notes, as actual issues of notes are 
always secured, whatever fate may betide the bank 
in its discount and deposit department, the well- 



246 CONSTITUTIONAL HISTOEY. 

grounded objection that existed against the State 
issues, which caused monstrous losses to holdeis 
by failures of banks to redeem, does not prevail 
against the United States banks. However, if the 
present rate of extinction of the national debt con- 
tinues, in less than ten years some other basis than 
United States bonds must be provided for a uni- 
form currency. 

During the war large portions of the public 
domain were granted to private corporations to 
assist them in building the Pacific railroads. This 
was followed by great grants to railway corpora- 
tions to assist in building railways but remotely 
connected with the Pacific system. However justi- 
fiable the motive originally was to grant the aid of 
public lands as an encouragement to the building 
of these great arteries of commerce, yet the aggre- 
gate public property thus given away became so 
great and the monopoly in public lands threatened 
to become so formidable, that a public opinion 
has been evoked in the United States that the 
public domain left under the control of the Govern- 
ment shall be used entirely for the purposes of the 
settlers, and not be thus given away. It is estimated 
that the domain given to the North Pacific Railway 
and branches is equal in territory to that of the 
whole of France. The increased value of the pub- 



CURRENT QUESTIONS. 247 

lie domain of the United States will in itself be a 
clieck against extravagant concessions of land in 
that manner, and an intelligent public opinion has 
been created to prevent wastefulness hereafter. 

The advancing wealth of the nation resulting in 
a growing importance of governmental functions in 
different departments of the United States Gov- 
ernment, which are respectively under the direc- 
tion of one of the Cabinet officers, and the 
desirability that these departments should be sub- 
jected to the constant criticism of the Legislative 
branch of the Government, has caused an earnest 
agitation in favor of giving to Cabinet officers 
seats in the House of Representatives, with a 
power to debate without voting on the result ; so that 
in the United States, as in England, interpellations 
may be made respecting the conduct of any one of 
the important departments of Government, and an 
answer elicited on the spot. At the beginning of 
the American Government these Cabinet officers 
were personal advisers of the President, were ap- 
pointed by him, and were responsible to him 
alone. The fact is now, however, recognized (more 
especially with reference to the Treasury) that 
the annual reports or budgets give insufficient in- 
formation, and that during the course of the year 
too much opportunity is afforded for sinister influ- 



248 CONSTITUTIONAL HISTOEY. 

ences to accomplisli ends having relation to stock- 
jobbing and the obtaining of private information 
of intentions on the part of the Treasury as to pol- 
icy, sale of bonds, etc., a remedy for which would 
be found if the Secretary of the Treasury were 
personally responsible to Congress. The further 
advantage expected to be derived from having the 
Cabinet or Ministry connected with the popular 
branch of the legislative body is that in that way 
some more direct responsibility will attach for the 
legislation of the Congressional session to the 
Government in power. One of the serious defects 
of all American legislation is the almost entire ab-r 
sence of responsibility connected with legislation. 
The party having a majority has no organized 
Ministry charged with the duty of forwarding and 
formulating the public legislation of the session, 
and however faulty and slipshod, and even mis- 
chievous, the Congressional or State legislative 
law-making may prove during the course of the 
year, the party having a numerical majority in the 
legislative body is not responsible because there 
is no Ministry as part of the law-making power 
which proposes and promotes legislation. Laws 
are proposed by individual members upon their 
own responsibility, and are passed in a hap-hazard 
and slipshod sort of way. A further argument 



CUEEENT QUESTIOlSrS. 249 

in favor of the reform is that to compel, on tlie 
floor of the House, an explanation of the conduct 
of the department, does certainly apply the correc- 
tive of publicity to all jobbery and peculation. 
The objection, that the selection of persons to fill 
executive departments should be made with refer- 
ence to executive and not oratorical abilities, and 
that such a change might compel appointments 
with the view to capacity readily to explain con- 
duct, instead of fitness for administrative work, has 
but little validity, as a very short experience teaches 
the average American to talk clearly and glibly on 
the subject he has in hand. 

The evil of including improper items in a bill 
making appropriations for the indispensable ob- 
J3cts of government, thus morally obstructing a 
veto, caused, in several of the States, a constitu- 
tional amendment to be adopted enabling the Gov- 
ernors to veto special items of the supply or appro- 
priation bills, and to approve the remainder. The 
clearly extravagant character of the Kiver and 
Harbor Bill of 1882 has awakened public attention 
to this subject, and will, doubtless, at an early day, 
cause an Amendment to the Constitution of the 
United States to be adopted, which will clothe the 
President with a like power. 
11* 



CHAPTEE Vn. 

THE STATE CONSTITUTIONS; THE CHANGES THEEEIN, 
ANK THEIE DEVELOPMENT. 

The Federal power being one of delegated 
powers, the States are in all matters not so dele- 
gated, the sole sovereignties. The State Constitu- 
tions map out the organization of the State Govern- 
ments, limit their powers, and are in many respects 
more important conservators of the liberty of the 
citizen than the Federal Constitution itself ; for the 
reason that the powers not surrendered to the Gov- 
ernment of the United States are much more exten- 
sive and much more immediately related to the rights 
of the individual, and therefore affect him more 
closely than the delegated powers of the Federal 
Government. In all their functions and domestic 
relations, amenability to the deprivation of life or 
liberty by the criminal law, in the assertion or de- 
nial of rights through the civil administration of 
justice— the State, with but few exceptions, has 
absolute control over the life, liberty, and happi- 
ness of its citizens. This book, therefore, would 

250 



THE STATE COlSTSTITUTIOlSrS. 251 

be incomplete if it did not give some account of tlie 
changes wliich have taken place in recent years in 
most of the State Constitutions, showing by means 
of these organic laws the course of governmental 
development. 

During the Revolutionary War most of the origi- 
nal thirteen States adopted State Constitutions, 
many of which were redrafted shortly after the 
war ; and before the formation of the Constitution 
of the United states, all the original States had 
written Constitutions. Every State, on its admis- 
sion to the Union, submits its Constitution to Con- 
gress, so as to give assurance thereby that it has, 
as required by the United States Constitution, 
adopted a republican form of government. These 
Constitutions all contain elaborate declarations of 
the rights of citizens which are not to be subjected 
to legislative or judicial interference, and are there- 
by reserved from the interposition of Government. 
These declarations of rights also contain carefully 
worded provisions securing the right to the writ of 
habeas corpus, of jury trial, and of exemption of pri- 
vate property from seizure for public purposes ex- 
cept on due compensation being made. They set 
forth how such compensation shall be ascertained ; 
insist upon guarantees of freedom of speech and of 
the press ; secure the right of petition and the right 



252 'coisrsTiTUTioisrAL history. 

of citizens to vote at all elections, and require that 
all officers sliall either be elected directly by the 
people or appointed by some authority elected by 
the people. 

Since the War of the Eebellion the Southern 
States, in which slavery had theretofore existed, 
amended their Constitutions, by forever abolishing 
slavery and every form of human servitude. 

The State Constitutions all divide the functions 
of government into Legislative, Judicial, and Ex- 
ecutive, specify the manner in which the Legisla- 
ture shall be elected, and set forth the powers of 
the Executive ; organize the Judicial system ; de- 
clare the manner of the appointment of the Judges, 
and confer upon them their respective jurisdictions. 
There is much uniformity in these particulars in 
the State Constitutions. The legislative power is 
generally vested in a legislative body composed of 
a Senate and an Assembly. The Senate is a small 
elective body, each member of which is elected for 
a longer period of years and from a larger district 
than the more numerous and popular legisla- 
tive body, which changes generally from year to 
year. 

Each State has its Governor, elected for terms of 
from one to four years ; some have Lieutenant-Gov- 
ernors and other elective executive officers. In 



THE STATE CONSTITUTIONS. 253 

States where such public works exist, canal com- 
missioners or superintendents of public works are 
either elected or appointed under constitutional pro- 
visions. State engineers and surveyors exist in most 
States, also state prison inspectors and other pub- 
lic boards to take charge of public works. Univer- 
sally, municipal organizations are created, county 
organizations are established, and a system of de- 
centralization of power is adopted for the purpose 
of securing local self-government within the domain 
of the State. Provisions are contained in many of 
these constitutions upon the subject of taxation, so 
as to secure uniformity and equality therein, and 
prevent the growth of public debts by throwing 
safeguards around the creation thereof. 

There are provisions in relation to the militia 
Most of the Constitutions now contain special arti- 
cles on the subject of bribery and official corrup- 
tion, and all contain provisions as to methods of 
amendment. In some of the States the Constitu- 
tion is limited as to duration to a number of years 
only, and State conventions are required to be called 
from time to time for the purpose of suggesting 
amendments. 

Some of the original Constitutions of the States 
required voting to be viva voce, and it was only in 
imitation of the Constitution of the State of New 



254 CONSTITUTIOISrAL HISTOEY. 

York of 1777, tliat voting by ballot was generally 
introduced. 

In some of tlie earlier Constitutions of tlie States 
a property qualification was required for tlie 
enjoyment of full citizenship, but this qualification 
has almost wholly been swept away. In the Con- 
stitution of the State of Massachusetts there is a 
provision that the voter shall be able to read the 
Constitution in the English language, and write his 
name, and by an amendment to its Constitution 
in 1863, two years in addition to the time necessary 
to qualify a resident to become a citizen of the 
United States, is necessary before he can be a 
citizen of Massachusetts. 

Under the Constitutions anterior to 1848 many 
of the officers now elected were aj)pointed by the 
Governors, Notably so was this the case as to judi- 
cial positions. The Constitution of 1846 of the 
State of New York, which, as to this change was 
the pioneer State of the Union, was drafted by 
men who were imbued with a spirit of radical 
democracy and who looked with suspicion upon all 
executive power. The Constitution thus framed 
therefore stripped the Executive office of many of the 
functions that it theretofore had and added enor- 
mously to the number of persons to be elected 
by the people, even Judges of courts of record 



THE STATE COlSTSTITUTIOlSrS. 255 

among the rest. This change, for reform it can 
scarcely be called, was adopted in other States, 
and it is only in recent years that the wis- 
dom of the change has been questioned and some 
modifications made in the original provision of the 
New York Constitution of 1846, and those of other 
States. It was found that electing Judges for so 
short a period of years as that provided for in the 
Constitution of 1846 of the State of New York re- 
sulted in obtaining in many instances, as Judges, 
mere politicians of a low order. It therefore be- 
came necessary either to return to the appointing 
power, or to make the tenure longer and the salary 
larger, so as to make the Judge, at least for a con- 
siderable period of time, independent of the favor of 
political parties. By amendments of 1869 the Judi- 
cial system in New York was recast ; the Judges of 
the higher courts were elected for a period of four- 
teen years instead of six, as theretofore, and public 
opinion was brought to bear upon the question of 
their remuneration, so that the salary of the Judges 
of the higher courts were made to approximate 
a little more closely to what could be earned by 
a lawyer in active practice. The opinion of the 
Bar, as expressed by organized bodies of lawyers, 
has been, however, almost uniformly in favor of a 
return to the system of appointment by the Execu- 



256 CONSTITUTIONAL HISTORY. 

tive : as tlie people as a whole, under existing 
American political conditions, are scarcely the 
proper custodians of the power wisely to select 
from among the Bar, the men who are best qualified 
for judicial functions, and the methods resorted to 
in order to secure nomination for judicial offices 
are oftentimes in themselves so demoralizing that it 
degrades the office in popular esteem, even if the 
selection of the people on the whole were as wise as 
that which could be made by the chief executive 
officer of the State, acting under a sense of his 
responsibility to the people for making a proper 
selection. The appointment to vacancies in judicial 
offices of course must still remain with the Execu- 
tive, but such appointments are generally limited 
until either the next succeeding general election 
or the election following the next succeeding gen- 
eral election. 

A firm conviction that decentralization of power 
was necessary to insure honesty in the administra- 
tion of public affairs injected into almost all of 
these Constitutions the requirement that munici- 
pal bodies shall elect their own officers, and that 
no one was to hold office within the municipality 
unless elected directly by the people in the locali- 
ty or appointed by an elected authority therein. 
This so multiplied elective officers within the State 



THE STATE CONSTITUTIONS. 257 

that at a general election the yoter is bewildered 
with the number of people he is called upon to vote 
for, and he finds it, therefore, more and more diffi- 
cult to determine upon the fitness of candidates, 
and is thus put at the mercy of political wire pul- 
lers and leaders who make the selection for him 
and call upon him to vote aye or nay between two 
or at most three candidates for the same office. 
This difficulty has not yet met with an intelligent 
solution at the hands of the American people. 

Before the adoption of the Constitution of 
1846 in the State of New York, and which is here 
taken as an example of the leading State Constitu- 
tions, because, as before stated, the amendments 
made by that Constitution were extensively followed 
in other States, a great source of evil was that the 
railway, banking, and insurance corporations cre- 
ated so formidable a lobby to secure special legis- 
lation and privileges for the benefit of such corpora- 
tions, that it was deemed expedient to cause general 
laws to be passed for their government, and restrain 
the Legislature thereafter from passing special laws 
upon the same subjects. As, however, the Legisla- 
ture was permitted to pass special laws in all cases 
whenever in its own opinion such legislation was 
necessary, the restriction, except as to banks and 
insurance companies, was not a very efficient one. 



258 CONSTITUTIONAL HISTORY. 

This question of special legislation is one wliich 
has not been wisely dealt with by the people of the 
United States, who in their attempt to reform the evil 
arising from the lobby interested in pressing for 
and securing such special legislation have fallen 
into a worse evil. 

By a constitutional amendment adopted in the 
State of New York in 1874, the Legislature of the 
State is prohibited from passing special laws in a 
large number of enumerated cases which had there- 
tofore been the lobbyist's most lucrative field of 
practice, and produced the greatest amount of cor- 
ruption. This amendment has been followed in 
other States. Albeit in Missouri and Pennsylvania, 
constitutional amendments of the same character 
had been adopted even prior to the one of New 
York. It was supposed that thereby a blow would 
be struck at corrupt legislation, and that the Legis- 
lature would be free to pass general laws upon these 
matters and bs thereafter absolved from all further 
concern in relation to the subject. It was not then 
seen that the most dangerous form of special legis- 
lation is that which comes under the guise of a 
general law, or as an amendment to the general 
law, and that after special legislation is foi^bidden, 
all persons desiring special privileges or legislation 
to meet a particular case, could just as well influence 



THE STATE CONSTITUTIONS. 259 

the Legislature to amend the general law to meet 
his case so as to give him a special privilege, as to 
cause a special law to be passed. In that manner 
one law after another has been placed, since 1875, 
upon the statute book of the State of New York 
and other States which followed the lead of New 
York, having their origin in personal interests only, 
and to meet special cases, thus destroying whatever 
there was of harmonious legislation in the general 
body of the law. This evil is more insidious and 
in its effects much more dangerous than the one 
which it was intended to remedy, and is one 
especially mischievous in the United States, be- 
cause, as already shown, there is no body of perma- 
nent legislators standing guard over the laws of 
the State, and no responsible ministry having 
charge of public legislation and responsible for it. 
There is not even party responsibility in relation to 
such laws, which are passed or neglected under the 
pressure of private interests or in the absence of 
any such pressure fail. It would have been very 
much wiser to have methodized legislation; to 
have separated, as the English Parliament has 
done, j)ublic or general legislation from all leg- 
islation which is private or local in character ; to 
require notice of application for private or local 
acts before the convening of the legislative body ; 



260 CONSTITUTIONAL HISTOKT. 

to treat tliem not as laws, but rather in the nature 
of judicial determinations on the part of the Legis- 
lature after a trial upon their merits at which wit- 
nesses are examined and a trained Bar may exert 
its talents for or against the bill, and secure its 
proper amendment. This would convert the lobby 
into a parliamentary bar ; would bring into the 
sunlight of publicity all schemes, be they of a 
sinister or beneficial character, affecting private 
individuals, corporations or localities, by requiring 
application for such special legislation to be filed 
before the opening of the session, and due notice of 
trial being given by advertisement, etc., thus giving 
to the community security that such legislation 
cannot be smuggled through at the latter end of the 
session, and enabling all opponents to be heard 
upon the merits as to the impropriety of such mear- 
sures. 

This division of private from local laws would 
tend also to elevate the character of public legisla- 
tion ; would prevent public or general laws from 
being used as mere instruments of private gain, and 
effectually extirpate the evil which was intended to 
be removed — a corrupt lobby seeking to gain an ad- 
vantage from the community by the secret or corrupt 
passage of improper private and local bills. 

The almost unlimited power of municipalities 



THE STATE CONSTITUTIONS. 261 

and counties to create debts for their own purpose 
or in aid of public works, led to a very formidable 
evil between 1850 and 1870 by tlie rolling up of 
enormous local public debts in aid of railway cor- 
porations. While in many instances this aid was 
perhaps necessary and judicious, yet it led to so 
much corruption and abuse throughout the States, 
and became so burdensome upon the localities, 
which frequently after the aid was voted failed 
to get the public improvement for the purposes for 
which they created the debt, and imposed taxes 
upon themselves, that in almost every State in the 
Union limitations were put upon the lending of the 
public credit or voting aid to railway corpora- 
tions by counties and cities. And in many States 
such aid is now entirely prohibited. 

The abuses incident to the distribution of public 
funds in aid of charities connected with religious 
establishments, where any particular religious de- 
nomination prevailed, as particularly in the city of 
New York, became of so grave a character that a 
constitutional amendment was adopted, and in 
many other States followed, by which cities were 
prohibited from granting any such aid to religious 
institutions. Exemptions from taxation have been 
a fruitful source of mischief in many States ; insti- 
tutions of a charitable and religious nature have en- 



262 COlSrSTITUTIOlSrAL histoey, 

joyed sucli exemption on tlie ground tliat impos- 
ing taxation upon tlie values of their property- 
would be onerous in the extreme, it being dedicated 
in a certain sense to public use, but it was soon 
found that many of these institutions had excep- 
tional advantages for property not actually used for 
charitable or religious purposes, and which property 
while held by them was free from the burdens im- 
posed upon the taxpayers of the State. This 
led to amendments of some of the State Consti- 
tutions limiting such exemptions to the building 
and land only upon which is erected such charitable 
or religious institution, and to no other lands 
whatever. 

The evils of corporate management have caused 
several of the States to provide as a remedy a sys- 
tem of minority representation in the election of 
their Boards of Direction as to all corporations 
thereafter to be organized ; both Pennsylvania and 
Missouri have engrafted such provisions upon their 
Constitutions. Illinois in the selection of the Legis- 
lature, and Pennsylvania in the election of Judges 
of the Supreme Court, are the only States which 
adopted minority representation for political offices. 
In Illinois minority representation is secured in 
all legislative districts by the provision that, 
in all elections of representatives, each qualified 



THE STATE CONSTITUTIONS. 263 

voter may cast as many votes for one candidate as 
there are representatives to be elected, or may dis- 
tribute the same or equal parts thereof among the 
candidates as he may see fit. This secures, in a 
very limited way, cumulative voting and therefore 
minority representation. 

In some of the States the agitation for women's 
rights has resulted in securing for married women 
by constitutional provisions or legislation an un- 
disturbed enjoyment of property rights. In none of 
the States, however, as yet have women become 
full citizens. 

A fruitful source of recent constitutional amend- 
ments throughout the States has been the growing 
power of the railroad corporations. In almost all 
the Western States elaborate provisions are con- 
tained in the State Constitutions by recent amend- 
ments by which railways are declared to be public 
highways. The Legislature is required to pass 
laws limiting the amount of charges ; the railway 
is constitutionally inhibited from discriminating in 
charges or facilities in transportation, or making 
any discrimination between transportation compa- 
nies or individuals, either by way of abatement, 
drawback or otherwise, and also from making any 
preference in furnishing cars or motive power 
between different individuals, and a new set of 



264 COlSrSTITUTIOKAL HISTOEY. 

officers, known as Railway Commissioners, liave 
been called into existence. In the State of New 
York no constitutional changes were made, but the 
Legislature of 1882 passed a Railroad Commission 
Act, and the Governor, in 1883, appointed the 
board thereunder. 

In some of the States the evil of constant altera- 
tions in the law and the uncertainties created th ereby 
have been sought to be prevented by constitu- 
tional changes making the ses sions of the Legisla- 
ture biennial instead of annual. This change 
appears to be a very short-sighted remedial mea- 
sure for an undoubted evil. In the States having 
biennial Legislatures, great inconvenience at times 
results from the impossibility of promptly conven- 
ing the Legislature for the purpose of passing a law 
of pressing necessity. If less attention is given to 
the quality of laws to be passed, as many bad laws 
can be passed in a short session of one Legislature 
as in two sessions of consecutive Legislatures. The 
true corrective of this evil is the one already re- 
ferred to of properly methodizing legislation, and 
dividing public from private acts, creating also some 
degree of responsibility for public acts by having 
a council of revision or some public body to whom 
the public acts are to be referred, and which shall 
report upon the same as an Advisory Board to the 



THE STATE CONSTITUTIONS. 265 

legislative bodies. Of course, the main evil of bad 
legislation arises from the fact that the legislators 
are not qualified for their work. Annual elections 
of large legislative bodies from the body of the 
people or the members of political caucuses, small 
pay for the time given to the public during that 
period, and the unfortunate American political con- 
ditions arising from the domination of the " boss " 
and caucus systems, bring as a general rule together 
in the legislative halls of the various States of the 
Union a body of men but little qualified for the 
most important work that can be entrusted into hu- 
man hands — that of legislating wisely and well for 
their fellow-men. This evil will find its remedy in 
the United States only after a considerable period of 
time. One of the conditions of its correction is, as 
already observed, to dissolve political parties as at 
present constituted, by minority representation, 
and to introduce a thorough system of civil service 
reform. 

The development of individual wealth will also 
in time come to the aid of the people of the United 
States ; as through it they will possess a body of 
men so emancipated from all necessity of looking 
after their personal interests, that they can devote 
their whole time to the public service. 

The change from annual to biennial sessions of 
12 



266 CONSTITUTIONAL HISTORY. 

tlie Legislature seems to be as inadequate for the 
purpose of curing the evils of bad legislation as 
would be the conduct of a man at the head of a large 
industrial establishment, who, finding that in 
consequence of its mismanagement by his super- 
intendents he runs behindhand year after year, 
determines to work but half time as a corrective, 
instead of changing his managers and changing his 
methods. He may not (if he is doomed to run be- 
hindhand) get himself into the bankruptcy courts 
by working half time quite as fast as by working 
full time ; but it clearly would be better for him 
either to shut up shop entirely, or to reform his 
methods of doing business. If biennial Legislatures 
are a remedy, not to have the Legislatures meet at 
all would be still a better one ; but this mistaken 
measure will continue to be adopted precisely as the 
limitation upon bad special legislation has run its 
course until the evils occasioned by the supposed 
change or reform will bring the people of the United 
States to a realizing sense of the fact that they have 
gone for relief in the wrong direction. 

The great evil in connection with State institu- 
tions is that which arises from the difficulty in 
dealing with municipalities so as to leave them on 
the one hand the power to govern themselves, and 
yet on the other to restrict a tendency which in all 



THE STATE CO]SrSTITUTIONS. 267 

American cities has developed itself to an 
alarming degree, its unlimited debt-creating power 
and methods of unwise taxation. 

Within the twenty years from 1860 to 1880, the 
debts of the cities of the Union rose from about 
$100,000,000 to $682,000,000. From 1860 to 1875, 
the increase of debt in eleven cities was 270.9 
per cent. ; increase of taxation, 362.2 per cent. ; 
whereas the increase in taxable valuation was but 
156.9 per cent. ; and increase in population but 70 
per cent. 

A large part of this increase of city indebtedness 
is doubtless due to the fact that in a concentrated 
community wherein the vast expenditures involved 
in city administration are to be made, such expen- 
ditures, in themselves exercise a corrupting influ- 
ence upon political elections, and create a numerous 
body of voters who, by reason of such interest in 
city expenditures, vote for and maintain in office 
persons pledged to increase them, or in any event 
not to reduce them. Political partfes find in the 
salaries of city officials and the numerous indirect 
advantages arising from the contracts to be awarded 
by the city for all the purposes of city administra- 
tion, such as water supply, street cleaning, sewer- 
age, lighting, etc., opening of streets and highways, 
an enormous fund to perpetuate their power and to 



268 COIirSTITUTIONAL HISTOET. 

supply tliem witli the necessary means to manipulate 
the results of the ballot box ; but the evil is not due 
wholly to city administrators alone. The members 
of the Legislatures of the various States have found 
in the offices of a great city, subject to their sway, 
abundant ojDportunities for placing friends in office 
and also to secure personal advantages of a more 
lucrative character. 

Before the charter amendments of 1871 for the 
city of New York, the annual tax levy of that city, 
—appropriations for the various purposes and ob- 
jects of the city government — was prepared by the 
Legislature in the same manner as the supply bill 
for the State ; and the corruptions incident to the 
items which found place in such tax levy were 
greater at that period than have prevailed since 
the city government had power from that period 
on to determine upon the amount of tax to be raised 
and the purposes for which it was to be expended, 
without having recourse to State legislation. Num- 
erous commissions for special municipal purposes 
were appointed by the Legislature, having indepen- 
dent powers to create debt without any vote of the 
city or any part of its inhabitants, and thus not only 
was the amount annually to be levied by tax heavily 
increased by legislative interference, but also the 
permanent debt was largely increased, frequently 



THE STATE CONSTITUTIONS. 269 

without the consent and at all times without the 
power of the city to prevent such imposition. 

Therefore, while it is true that the city adminis- 
tration, when left to itself under the peculiar cir- 
cumstances of a large proletarian class in every city 
in the Union having voting power, is likely to run 
into excesses of debt and extravagant administra- 
tion, recourse to the Legislature and leaving the 
city powerless to administer its own affairs, has 
been shown by past experience to result in even 
worse effects than decentralization of power leads to. 
This condition of affairs has led to an investigation 
of the question to Avhat extent city administration 
is part of the government of the nation, and whether 
or not it is not largely the mere administration 
of private property upon a cooperative plan. 
Certainly many of the functions of the city gov- 
ernment, such as lighting, paving, and laying 
out of streets, and the supply of water, are 
not truly governmental functions, but private ser- 
vices, which are performed under governmental 
forms for the owners of real estate who would 
themselves provide such service in the absence of 
any government taking it in charge. Various efforts 
have been made, therefore, to create somewhere in 
the city administration a veto power, lodged in the 
hands of tax and rent payers, upon such expendi- 



270 CONSTITUTIOlSrAL HISTORY. 

tureswifclioiit thereby limiting tlie suffrage as to any 
general governmental city functions. Thus far these 
efforts have not only proved unavailing, but have 
cast some deg-ree of odium upon their advocates as 
being supposed to be adverse to the fundamental 
principles upon which the institution of American 
governments are based. That this charge against 
them is not true does not seem much to affect the 
question, because large bodies of people do not 
closely analyze, and it requires some intellectual 
effort to appreciate the difference between a city ad- 
ministration and the general Government. That the 
tax-eaters should not have absolute control over the 
taxes to be expended by the tax-payers would appear 
to be an entirely axiomatic truth in political philos- 
ophy. That the population of cities will increase, 
and that the pressure of competition will necessarily 
add largely to the proletariat class when any check 
comes to the prosperity of the people, would also 
appear to be almost as self-evident. Sooner or later, 
therefore, the people of the United States will either 
have to adopt some method of city administration not 
copied from the administrative forms of the United 
States or the States, by which such a regulation 
of the suffrage shall take j)lace that those who have 
a permanent stake in the community shall, upon 
all expenditures involving large amounts in cities, 



THE STATE CONSTITUTIONS. 271 

have some voice in determining tlie am'ount and 
purposes of such expenditures ; or fairly and freely 
recourse must be had to a system of minority repre- 
sentation to secure this result. Indeed the adoption 
of the latter reform would, without resort to any 
limitation of suffrage, in itself, check the ex- 
travagant, corrupt and useless expenditures in 
cities ; but in the absence of the introduc- 
tion of any such system, the problem is becoming 
a very serious one as to how, with the growth 
of a pauper element, property rights in cities can 
be protected from confiscation at the hands of the 
non-producing classes. That the suffrage is a 
spear as well as a shield is a fact which many 
writers on suffrage leave out of sight; that it 
not only protects the holder of the vote from ag- 
gression, from which point of view it is unobjec- 
tionable, but also enables him to aggress upon the 
rights of others by means of the taxing power, is a 
fact to which more and more weight must be given as 
population iucreases and the suffrage is extended. 
Some of the evils incident to city government in 
the United States are remediable by other means. 
One of the fruitful sources of evil influences exercised 
upon municipal administrations arises from a false 
distribution of power in the city governments. 
Departments which should be under some central 



273 CONSTITUTIOT^-AL HISTORY. 

authority and responsible to it, tlie members of 
whicli should be removable by tbe Mayor at will, 
who in turn is responsible for the good government 
of the city to its inhabitants, have become inde- 
pendent bodies having debt-creating power without 
central control. 

The city council chamber, even when not strip- 
ped of all responsible legislative functions, as has 
been notably the case in the city of New York, is 
called into being under a faulty system. Small 
districts are created for the election of members of 
the Board of Aldermen, and frequently a provision 
is made by which minorities and majorities in the 
districts have equal representation, so that either 
small politicans come to the surface in consequence 
of the small district, or caucus nominations are 
equivalent to an election, and the election becomes 
a mere form. This has at times been called minor- 
ity representation, but it is not so in any proper 
sense, as it is mere party representation, and not 
representation of the people. 

Attempts have been made in some of the Consti- 
tutions of the States by limiting the ratio of assess- 
ment to check extravagance, but this has proved 
quite futile as a remedy, because the law is evaded 
by increasing the assessment so as to keep within 
the ratio, so that in some of the cities where such a 



THE STATE CONSTITUTIONS. 273 

limitation lias prevailed the assessed value of prop- 
erty is largely in excess of its actual value, and the 
ratio of taxation takes a considerable proportion of 
the actual rental value of real property. 

The laws in relation to cities are so constantly 
changed by the political parties in power within 
the State, so as to increase patronage in favor of 
the party in power, and to decrease it as against 
the adverse party, by either change of officials in 
office or a transfer of large powers from one de- 
partment to another, tliat the Chief Justice of the 
State of Nev\r York in 1875, in a judicial opinion 
stated that " it is clearly unsafe for any one to 
speak confidently of the exact condition of the 
law in respect to public improvements in the cities 
of New York and Brooklyn. The enactments with 
reference thereto have been modified, superseded 
and repealed so often and to such an extent that it 
is difficult to ascertain just what statutes are in 
force at any particular time." This grave condi- 
tion of affairs has led many of the States to appoint 
bodies of men especially commissioned to inquire 
into the causes of these evils, and to suggest reme- 
dies. New York, Pennsylvania and New Jersey have 
received reports from the commissions thus ap- 
pointed, but the remedies proposed threatened 
so seriously to impair both the power and the 
12* 



274 CONSTITUTIOlSrAL HISTORY. 

patronage of tlie politicians that they failed of ac- 
ceptance. 

It will be found that the main remedy for almost 
all the evils of administrative machinery of Ameri- 
can cities will be in the adoption of a constitutional 
limitation upon the power to create indebtedness, 
and constitutional inhibition upon the Legislature 
to interfere with the city's administration unless 
such legislation is demanded by the inhabitants of 
the city in some formal manner. The remodel- 
ing of city charters so as to centre responsibility 
in the Mayor and the Board of Aldermen, and to 
subordinate all executive heads of departments to 
the Mayor and to the legislative department of the 
city ; the adoption of some system of minority rep- 
resentation, upon a scale sufficiently adequate to 
create a balance of power within party lines, so that 
groups of taxpayers may, independent of party dicta- 
tion, inject representatives of property interests into 
the local legislative body ; the holding of municipal 
elections at a different time from State or National 
elections, and the growth of a conviction in the com- 
munity which will in time lead them to regard mu- 
nicipal offices as business trusts having no relation 
to party divisions on political questions, and to re- 
pudiate the claim of party managers to make nom- 
inations for such offices as an act of usurpation. 



INDEX. 



Compiled by L. E. Jones. 



Abolitionist party, origin, 176; acces- 
sion of stiengtli, 180. 

Adams, J., his casting vote gives Prest. 
powtr of removal, Ifjl ; adm. of, 157- 
150; his breach wilh Hamilton, 100. 

Adams, J. Q., adm. of, Kib-KiS. 

Adjournment of Congress, ati ; by the 
Prest ,74. 

Administration, of Washington, 147- 
157; Adams, 157-159; Jefferson, 159- 
Itjl; Madison, l()l-lti:3; Monroe, ](i3- 
106; J. Q. Adams, 100 108; Jackson, 
168-175; Van Binen, 175-176; Harri- 
son, and Tyler, 177-179; Polk, 179- 
181; Taylor and Fillmore, 182-186; 
Pierce, 180-190; Buelianan, 190-196; 
Lincoln, 190-200; Johns.>n, 200-205; 
Grant, 205-216; Hayes, 216-220. 

Admiralty powers under Arts, of Con 
fed., 10; power of Congress. 45 : juri.s- 
dietion of Snp. Ct., 103-103, 106; of 
U. S. courts, 107-108, 126. See aluo 
Prizes. 

Admission of States, 17, 19; submis- 
sion of their constitutions to Con- 
gress, 251. 

Adoption of Const., opposition to. 14^ 
14S, 149. 

Advisory Boards for legislatures, 264- 
265. 

Age of Congressmen, 28 ; of Senators, 
33; of Prest., 68. 

Agricultural statistics, 88. See also 
Granger. 

Agriculture, Dept. of, 84; its duties, 
94-95. 

Alabama secedes, 194. 

Alabama settlement with England, 207. 

Alaska, purchase of, 115. 

Aldermen, defects of system, 272; 
should bo made responsible, 274. 

Alien laws, 4S-49. 141, 1.58-1.59. 

Aliens, power of Prest. to protect, .S3; 
suits in wliich they are parties, 103, 
109-110. 

Alliance. See Treaty. 

Ambassadors, Continental Congress to 
send and to receive, 10; under Const. 
appointed by Prest., 73; suits affect- 
ing, 102, 103, 126. 



Amendments to Const., 64, 66, 103, 110, 
117-124, 160, 202, 205; how made, 17- 
18; their provisions, 18-23; Sec. of 
Slate to give notice, 85 ; they form 
a bill of rights, 135-144; those pro- 
posed by Madison, 151-152; defeated, 
167. 

Amendments to State constitutions, 
provisions for, 253. 

American party. /SVtKnowNothings. 

American register of ships, 2-37. 

Amnesty power taken from the Prest., 
203. 

Anti-Federalists, 148-149. 

Anti-Masonic party, 172. 

Anti slavery. .SV-f* Abolitionist; Slavery. 

Appellate jurisdiction of Sup. Ct., ira, 
120-132; of U. S. courts, 121-122; of 
Circuit courts, 133. 

Appointing power of Prest., 73-74, 70- 
78, 82-84, 89, 90, 92, 93, 94, 126, 151: 
share of Senate in, 34; how used 
since adm. of Jackson, 227; its 
evils, 227-228; efforts at reform, 228- 
2;31. See crfso Civil service; Removal: 
Spoils; Tenure-of-ofiice. 

Appointment of State officers, 251-252, 
2.54-257; of judges, 254-2.56. 

Ai)portionment of Congressmen, 28-31, 
123. 

Appraisal of imports, Trcas. Dept. to 
report to Congress rules for, 87. 

Appropriations, bills for, to originate 
in Hiiiise of Iti^p., 30-37; niDiiey to 
be paid only by, 51 ; Treas. Dept. to 
keep account of, 85. 

Arkansas, hesitiites about secession, 
194; secedes, 197. 

Armies, power of Congress to raise, 
45; appropriations for, limited to 
two yeais, 45, 40; power of States to 
maintain, limited, 50. S^e ulso Mili- 
tia. 

Arms, right of people to bear, 19, 140- 
141 ; does not apply to concealed 
weapons, 117-llS. 

Army, power of Continental Congress 
over, 11; of Congress over, 46; of 
Prest. over, 203; U. S. does not need 



INDEX. 



a standing, 222. See also Militia; 

Vohmtecr; WarDept. 
Arsenals, jurisdiction of Congress over, 

47. 
Arthur, C. A., accession to presidency, 

80-81, 220. 
Articles of Confederation, adoption, 

!); powers, 10; defects, 11-ia, 2?, 

96; differences from Const., 143-144; 

their weakness, 146. 

Ashburton treaty, 178. 

Assassination of Lincoln, 200 ; of Gar- 
field, 2:iO. 

Assembling, people's right of, 19, 117, 
140. 

Assessments, attempts to limit ratio, 
272-273. See also Political assess- 
ments. 

Attainder, Ijill of, forbidden, 47, 50-51, 
52, 111. 

Attorney-General, 84; bis duties, 90- 
92. 

Bail, excessive, prohibited by Const, 
amend., 21, 122, 142. 

Ballot, Prest. and Vice-Prest. to be 
chosen by, 66; iis introduction in 
voting, 254. 

Bank of U. S., disagreement as to its 
incorporation, 155; reorganization 
in 1811, 163; the failure to re 
charter it, 170-171 ; Jackson removes 
U. S. deposits from, 172. See also 
Fiscal. 

Bank notes. See Paper money. 

Banking corporations, influence upon 
State legislation, 257. 

Bankruptcy, power of Natl. Govt, 
over, 16; of Congress, over, 43; writs 
of injunction in, 133. 

Banlis, statistics of, 88. See also Na- 
tional banks; State banks. 

Battle of New Orleans, 162-163. 

Bell, J., nominated as Prest. by Const. 
Union party, 193. 

Biennial sessions of State legislatures, 
264-266. 

Bill of attainder. See Attainder. 

Bill of rights in amends, to Const., 
135-144. 

Bills of credit. States prohibited from 
issuing, 52. 

Bimetailism, 242-244. 

Blair, F. P., Jr., nominated as Vice- 
Prest. 205. 

Bland silver bill, 242. 

Blockades, power of Prest. to insti- 
tute, 83. 

Bonds of U. S. not subject to taxation 
by States, 39; natl. banks required 
to invest capital in, 198. See also 
Debt. 

Bosses, political, 219, 265. 



Boundaries between the States, 10. 

Bounty lands, 94, 115. 

Breckenridge, J. C, elected Vice- 
Prest., 190; nominated as Prest., 193. 

Bribery, impeachment for, 75; provis- 
ions m State constitutions against, 
253. 

British orders in council, 161. 

Brooklyn, frequent change of public 
improvement laws, 273. 

Brooks, P. S., assault upon Sumner, 
189. 

Brown, B. G., nominated as Vice- 
Prest.,20a. 

Buchanan, J., adm. of, 190-196. 

Bureau. 6(=« Census; Education; Freed- 
men's; Mint; Statistics. 

Burr, A., contest ^Mtll Jefferson for 
presi..ency, 159-160; duel with Ham- 
ilton, 160. 

Butler nominated as Vice-Prest., 181. 

Butler, B. F., declares slaves to be 
contrabands of war, 197. 

Cabinet, 83-84; that of Tyler resigns, 
177-178; propriety of giving mem- 
bers seats in Congress, 247-249. 

Calhoun, J. C, elected Vice-Prest., 
167, 168; advocacy of nullittcation, 
170. 

California, cession to TJ. S., 180; ad- 
mission as a State, 183-1H4; its ac- 
tion ou Chinese question, 240. 

Canal commissioners of States, 2.53. 

Capital of U. S., its location, 152, 153, 
155. 

Ca]iitation tax proportional to popula- 
tion, 51. 

Captures. See Prizes. 

Carpet-baggers, 206. 

Cariying trade, efforts to restore, 237- 
238. 

Cass, L., nominated for presidency, 
181. 

Caucus, origin, 159 ; its evils, 232, 265 ; 
how to remedy them, 235. 

Censorship of the press, 1-37. 

Census, provision for taking, 28-31. 

Census Bureau, 93-94. 

Centralization of power, 156, 158, 226. 

Chaitergovernments of the colonies, 3. 

Charters, colonial, 2, 3. 

Chase, S. P., 43. 

Chief Justice presides in impeachment 
of Prest., 82. 

Chinese question, 239-241. 

Circuit courts established by Congress, 
44; appeals to Sup. Ct. from, 126, 127; 
writs of ne exeat by judges of, 132. 

Citizens of the different States to be 
on an equality, 18; to be entitled to 
privileges of other States, 57-58, 60, 
113-114; suits in which they are par- 
ties, 103, 104, 105, 106, 109, 110; juris- 



mDEX. 



diction of Sup. Ct. in cases between, 
103, 105; entitled to equal i)rotection 
of States, ia-^-123; their rights pio- 
tected more by States than by natl. 
govt., 250; their rights of voting at 
all elections, 251-252. 

Citizenship of Cougressmen,28; of Sen- 
ators, 33; detined, 113-114; freedmen 
admitted to, 202; qualifications for, 
254. See «fco Naturalization. 

City. See Municipal. 

Civil judgnienis in one State binding 
in others, 59. 

Civil law, lis administration chiefly in 
control of States, 250. 

Civil rights, 22, 122-123, 124; passage 
of bill, 202. 

Civil service, evils of. iv-v, viii; re- 
forms in, 77-78, 22a-2;il, 235. 265. 
See also Appointing; OtHce -holders; 
Removals; Spoils. 

Civil suits, right of jury in, secured by 
Const, amend., 21. 

Civil War, 196-200; settlement of is- 
sues raised by it, iv-vi; Const, 
amends, caused by, 22; settled ques- 
tion of State rights, 26; a pretext for 
protective duties, 235-238. 

Claims of and against U. S. to bo ad- 
justed by Treasury Dcpt., 85; inva- 
lidity of Southern, 22, 123-124. See 
also Examiner; Court of Claims. 

Clay, H., 165. 

Clearance of vessels, 51. 

Clerk of House of Representatives 
maices up rdl of members, 32. 

Clinton, G., elected Vice-Prest., 161. 

Coast Survey, 88, 151. 

Cobden-Clievallier treaty, 2.38. 

Coercion of Judicial and Exec, Depfs. 
by Congress, 35; of States, 194, 196. 

Coercive authority lacking in Conti- 
nental Congress, 11-12. 

Coffee, duty on, lowered, 238. 

Coin of U. S. under charge of Treas. 
Dept., 87. 

Coinage, power of, under Arts, of 
Confed., 11; under Const., 42-43; 
Statesprohibited from, 52; of silver, 
242. 

Colfax, 8., elected Vice-Prest., 205. 

Colonial Confess, declaration of 1765, 
4-5. See (ilso Continental Congress. 

Colonies, their forms of government, 
1-5. See also State legislatures. 

Color, discriminations against, prolaib- 
ited by Const, amend., 22. 

Colorado, organization into aterritory, 
196; admission as a State, 211; min- 
ing regions of, 217. 

Commander-in-chief, 45-46, 73. 

Commerce, inter-.'^tate, 13, 51, 224; 
power of Congress to regulate, 40- 
42; statistics "of, 88; embargo act 



for protection of, 161. See also Ex- 
ports; Free trade; J'loteclive. 

Commercial crisis of 1S37, 172, 176; of 
1873, 210. 

Commissions granted by Prest., 74. 

Common law, recognition of, in colo- 
nies, 2-3. 

Compensation of, presidential electors, 
71; for private property seized, 119. 

Competitive examinations, 229. 

Compiomises in Const., 22i-24. 

Concealed weapons, 118. 

Confederate govt., organization, 195. 
S<e also Southern States. 

Confederates, disabilities, 22,123; in- 
validity of claini'^ for losses, 22, 123- 
124; iron-clad oath, 63-64. See also 
Sou! hern States. 

Confirmation by the Senate, 34-35, 73- 
74, 80, 89, 90, 92, 93, 94. 

Congress, 27-64 ; lis appointment 
power, 74; depts. to report to, 85, 
87-88; Attorney-Gen. and Postmas- 
ter-Gen. to repoitto, 92; limitaiions 
on, 96-98, 101-102; power over juris- 
diction of U. S. courts, 104, 106-107, 
108; its right of eminent domain, 
119-120; claims before, 133-135; the 
iiistContrress, 149-153. Ste also Co- 
lonial; Continental; House of Rep.; 
Legislation; Senate. 

Congressional districts, 30-31. 

Congressmen, their qualifications, 28; 
number, 29-31; disqualification for 
otheroftices during term, 36; oath to 
siipi)ort Const., 63-64; cannot be 
prest. electors, 65; number in Madi- 
son's adm., 163. 

Conklin, K., his resignation, 77. 

Connecticut, form of colonial govt., 3. 

Conspiracy not treason, 112. See also 
Sedition. 

Constitution of U. S., 1-26; the su- 
preme law, 61-62; opposition to its 
adoption, 14, 148-149. See also 
Amendments; Constructions; Lim- 
ited. 

Constitutional Convention, 14. 

Constitutional law, its scope, 15. See 
also L:iws. 

Constitutional Union party. SeeKnow- 
Nothings. 

Constitutionality of Acts of Congress, 
why determined by judges, 97-102. 

Couptituticms of the States, 1-8; tlieir 
changes and developments, 2.50-274. 

Constructions put upon Const., cause 
of parties, 173-175. See also Loose ; 
Strict. . . 

Consuls, appointed by Prest., 74; juris- 
diction of Sup. Ct. in cases affecting, 
102 103: parlies to actions, 126. 

Continental Congress, 5-7 ; its pow- 
ers, 10-11 ; its inability to enforce 



INDEX. 



laws, 12, 27; a tribunal of last re- 
sort, 96. 

Continental paper money, amount and 
redempiion of, 154. 

Contraband of war, slaves declared to 
be, 197. 

Contracts, States probibited from im- 
pairing, 52-56 ; those of Treas. Dept. 
to be reported to Congress, 87 ; for 
postal service, 92, 93. 

Convening Congress by Prest.,74. 

Conventions for nominating Prest., 
their beginning, 69-70 ; fur amend. 
State consts., 253. 

Copyright, power of Congress over, 
43-44. 

Corporations, modification of State 
grants to, 53-56 ; have not the privi- 
feges of citizens, 58 ; empowered to 
exercise right of eminent domain, 
119; grants of land to, 246-247; in- 
fluence upon State legislation, 257 ; 
minority representation in, 262. See 
afoo Municipal. 

Corruption, of carpet-baggers, 207 ; 
provisions in State cousts. against, 
253; in city govts, 267. 

Cotton, illegality of export duty on, 51; 
claims for seizure of, 1.33-134. 

Counsel in criminal prosecutions, 120. 

Counterfeiting, power of Congress to 
punish, 43. 

Counting electoral votes, 66, 71, 213- 
214. 

Comity organizations, established bj' 
State constitutions, 253 ; debts in aid 
of railways, 260, 261. • 

Court of Claims, appeals to Sup. Ct. 
from, 127; its jurisdiction, 133-135. 

Courtesy of the Senate, 76-78. 

Courts of last resort, their judcrments 
final, 121. See aUo Circuit; District; 
Judicial; State; Supreme. 

Courts martial, 120-121, 140. 

Credit, bills of, States prohibited from 
issuing, 52. 

Credit of U. S. under Continental 
Congress, 12-13. ^ee aim Debt. 

Clime, no increase caused by Civil 
War, V. 

Crimes committed in U. S. bldgs. 
cognizable in U. S. courts, 47. 

Criminal law, how guarded by Const, 
amend., 20-21; judgments in one 
State not binding in others, 59-60 ; 
jury trials obligatory, 110-112; in- 
dictments essential, 118 ; limitations 
on prosecutions, 120-121; its adm. 
chiefly in control of States, 250. See 
also Attainder; Ex post facto. 

Criminals to be delivered, up by the 
States, 18, 50, 58. See also Requi- 
sition. 

Crittenden Compromise, 194. 



Crown lands, ownership after formar 

tion of Union, 9-10. 
Cuba, pro-slavery desire for its ac- 
quisition, 191. 
Cumulative voting, 263. 
Currency, statistics of, 88 ; Controller 

of, 89. See also Legal tender; Paper 

money. 
Current questions, 222-249. 
Custom duties. Treasury Dept. in 

charge of collection, 86. Ste also 

Imports ; Protective. 
Custom-Houses, number of emploj'es 

and expenses to be reported to 

Congress, 88. 
Customs, Commissioners of, 89. 

Dakotah, organization into a territory, 
1116. 

Dallas, G. M., elected Vice-Prest., 179. 

Dartmouth College vs. Woodward, 53. 

Davis, J., elected Prest. of Confeder- 
ate govt., 195. 

Death of Prest. and Vice-Prest., 79-81. 

Debt of U. S., payment and refunding 
of, v; Continental Congress M'ith- 
out power to pay, 11; practical re- 
pudiation under Continental Con- 
gress, 13 ; its validity secured by 
Const, amend., 22, 123; power of 
Congress to contract, 40; in charge 
of Treas. Dept., 86; its considera- 
tion in first Congiess, 152, 153-155 ; 
its amount at close of War of 1812, 
162; its decrease during adm. of 
Monroe, 166; extinguished during 
adjn. of Jackson, 173; increased by 
Mexican War, 182; its payment in 
coin, 209-210; increased by Civil 
War, 227; its rapid decrease, 241, 
246. See also Bonds. 

Debts, States cannot obstruct collec- 
tion of, 54; States prohibited from 
making tliera payable in anything 
but gold and silver, 52; contracted 
in aid of railwavs, 260-261. 

Debts of cities, 260-261,267-271; neces- 
sity for their limitation, 273-274. 

Debts of States, validity of those 
contracted before adopting Const., 
61; their amount and tlieir assump- 
tion by natl. govt., 154-155; con- 
trolled by their consts., 253. 

Debts of Southern States, their invalid- 
ity, 23, 123 : those created since 
Civil War, 206-207. 

Decentralization of power in States, 
253. 

Derisions. ;Ste Judgments; Supreme 
Court. 

Declaration of Independence, 6. 

Delaware, form of colonial govt., 3; 
withholds ratification to Articles of 
Confed., 9; secedes, 197. 



INDEX. 



Democratic-Republican party, 155. 

Democratic party, 155, 172; platform 
in 1&48, 181; in 1852, 185-186; its 
division in 1800, 192-193; adopts Lib- 
eral Kepub. candidates, 208; nomi- 
nates Tildcn as Prest.,211; change 
of attitude in li~7(), 214-216; nomi- 
nates Hancocli as Prest., 217; plat- 
form in 1880, 218; its change of 
front loses it the election, 219 ; its 
principles, 220 ; its advocacy of 
civil service reform, 230 ; free tra- 
ders' relation to, 238-239. See 
also Republican (Old); Republican- 
Democratic. 

Demonetization of silver, 241-242. 

Departments. See Agriculture; In- 
terioi-; Justice; Navy; Post-office; 
State; Treasury; War. 

Deposits of U. S., withdrawn from U. 
S. Bank, 172; placed in U. S. treas- 
ury, 176. 

Diplomatic affairs in charge of State 
Dept., 84-85. 

Disabilities of rebels, 22, 123. 

Disbursements. See Expenditures. 

Discriminating legislation, 113-114. 

Discrimination in railway rates, 225. 

Disputes between the States, settle- 
ment of, under Arts, of Coiifed., 10. 

Disqualification of Congressmen and 
Senators for other offices during 
term, 36. 

District attorneys, 90. 

District courts, 44, 126, 127, 1.32. 

District of Columbia, jurisdiction of 
Congress over, 47; appeals from its 
Sup. Ct. to U. S. Sup. Ct., 127. 

Districts in which trials shall be held, 
120, 132. 

Dock-yards, jurisdiction of Congress 
over, 47. 

Documents, public, 94. 

Dodge, Free Soil party nominate, as 
Vice-Prest. in 1848, 182. 

Domestic violence, U. S. to protect 
States from, 59. See cdso Insurrec- 
tions. 

Door-kepper of House of Rep., 32. 

Douglass, S. A. nominated as Prest. 
by Northern Democrats, 193. 

Dred Scott decision, 190-191. 

Duties. See Customs; Free trade; 
Imports; Internal revenue; Pro- 
tective; Revenue. 

Education, grants of lands to States 
for, 115; of colored children, 124. 

Education, Bureau of, 94. 

Election of Congressmen, time and 
mode, 31-32; House of Rep. sole 
judge of, 36. 

Electiim of judges, 2.54-2.56. 

Election of Prest., 65-72; change in 



mode, 160; defeat of further attempt 
to change mode, 167; Jackson recom- 
mends change in mode, 169-170. 

Election of Senators, 33; Senate sole 
judge of, 86. 

Elections. See Ballot ; SufErage. 

Electoral College, 6.5-72. 

Electoral Commission of 1876, 72, 214- 
216. 

Electors of Congressmen, their quali- 
fications, 2S ; penalty for abridging 
their rights, 29. 

Electors of Prest., 65, 72. 

Emancipation proclamation, 197. 

Embargo act, Kil. 

Emigration, tax of N. Y. illegul, 56-57; 
a cause of prosperity, 237. 

Eminent domain, 55, 119-120. 

Employes. See Office-holders; State. 

Engineers. See State. 

England, critical relations with, during 
Washington's adm., 157; France de- 
sires U. S. to assist in war a>;ainst, 
158; relations with, 161, 163; orders 
in council, 161 ; War of 1812, 162-163; 
settlement of Oregon question, 181; 
how its system of p:iriies differs 
from U. S., 231-2.32; benefits of her 
free trade policy, 238. 

Errors. See Appeals. 

Europe, U. S. opposition to its inter- 
ference with affairs of N. Am. con- 
tinent, 165-166. 

Everett, E., nominated as Vice-Prest. 
by Const. Union party, 193. 

Examiner of Claims, 90. 

Executive Dept., 65-95; its w'eakness 
under Articles of Confed., 12, 27; 
coercion of Congress over, 35. See 
also National government. 

Executive officers, oath to support 
Const., 63-()4. See also Cabinet ; 
President; State. 

Exempliflcatiou acts, 57. 

Expenditures, Treasury Dept. to keep 
account of, 8.5-86; to be published 
quarterly, 88-89. 

Exports, taxes on, prohibited, 51 : 
Treas. Dept. to prepare stati^tics of, 
86; at close of Jaclison's adm., 173; 
increase during Ilaj'es' adm., 217. 

Ex post facto laws prohibited, 50-51, 52, 
111. 

Expulsion of Congressmen and Sena- 
tors, 36. 

Extradition. See Requisition. 

Federal party, 148-149; its advocacy of 
central power, 156; its success, 157; 
causes of unpo])ularity, 1.58, 159; 
weakened, 160; further weakened, 
161, 162; its disappearance, 174. 

Felonies on the high seas, 4.5. 

Fillmore, M., adm. of, 182-186. 



INDEX. 



Finances under Continental Congress, 
12-13. See also Debt. 

Fines, excessive, prohibited by Const, 
amend., 21, 122, 142. 

Fiscal Bank of U. S., bill to incorpo- 
rate, vetoed by Tyler, 177-178. See 
also Bank. 

Fitzsimmons, T., author of first tariff 
list, 149. 

Florida, purchase of, 115, 116, 164; 
admission as a State, 178-179; se- 
cedes, 194: its electoral vote in 1876, 
212, 214, 216. 

Food, the U. S. the largest contribu- 
tor of, iv. 

Foreign affairs in charge of State 
Dept., 84-85. 

Foreign gifts, etc., to office-holders 
prohibited, 52. 

Foreign intervention not feared by U. 
S., 222. 

Foreign postal service, 92, 93. 

Foreigners. See Aliens. 

Forfeitures, power of Brest, to remit, 
83. 

Fort Sumter, surrender of, 196. 

Forts, jurisdiction of Congress over, 
47. 

France, influence in State constitu- 
tions, 8; purchase of land from, 115, 
116; relations with during Washing- 
ton's adm., 157; desires United 
States to assist in war against Eng- 
land, 158; embargo act, 164; free 
trade policy, 238. 

Franchises created by States cannot 
be taxed by Congress, 40; power of 
States to modify, 53-56. 

Free Soil party, origin, 181-182; its 
protest against fugitive slave law, 
186. 

Free trade, foreign and inter-State, 
vii; advocated m Democratic plat- 
form of 1880, 218; position aban- 
doned, 219; advocated by the South, 
236; loss of confidence in Democratic 
party, 2.38-239. See also Commerce; 
Protective. 

Freedmen, their electoral rights 
guarded by Const, amend., 29; edu- 
cation of their children, 124; exten- 
sion of suffrage to, 200-203, 205; 
legislation to secure their rights. 
206. 

Freedmen's Bureau, 201, 202, 203. 

Freedom of the press secured by 
Const, amend., 19, 117, 136-140; se- 
cured by State consts., 251. 

Freedom of religion, 19, 117. 135-136. 

Freedom of speech secured by Const, 
amend., 19, 117, 136-137; secured by 
State consts., 2,51. 

Fremont, J. C, proposal to free 
slaves, 197. 



Fugitive slave bill, 58-59, 184-186 ; re- 
pealed, 199. 

Fugitives from justice to be delivered 
up by the States, 18, 50, 58. 

Gadsden purchase, 180. 

Garfield, J. A., assassuiation, 80-81, 
220; elected Brest., 217; desire for 
civil service reform, 229. 

General tjovernmeiit. <$(?« National. 

General laws, as opposed to special, 
258-260, 264. 

Georgia, form of colonial govt., 3 ; op- 
position to protective duties, 168 ; 
secedes, 194. 

Germany, effects of its decentraliza- 
tion of power, 226 ; demonetization 
of silver, 241. 

Ghent, Treaty of, 162. 

Gifts to office-holders from foreign 
states prohibited, 52; to religious 
instituiions 261-262. 

Gold, anti-slavery effect of its dis- 
covery in California, 183; its value 
in Civil War, 209. 

Government of the Continental Con- 
gress, 6-7. See also National. 

Governments of the colonies, 1-5; of 
the Southern States, 201, 203-204, 
206-207. 

Governors, colonial, powers of, 2, 3 ; 
of States, 252,254-256. 

Grand jury, indictments by, 118. 

Granger laws, 53-54, 224. 

Grant, U. S., 199, 203 ; appointed Sec. 
of War, 204 ; adm. of, 205-216 ; efforts 
at civil service reform, 228. 

Grants to religious institutions, 261- 
262. 

Greeley, H.. heads Repub. opposition 
to Grant, 207 ; nominated as Brest., 
208. 

Greenback party, 210, 217, 243, 244. 

Greenbacks. See Currency ; Baper 
money. 

Gresham law, 242. 

Grievances, redress by petitioning, 19. 

Guadalupe Hidalgo treaty, 115. 

Habeas corpvs, 133 ; restrictions on its 
suspension, 50 ; power of Brest, to 
suspend, 83 ; not to be used in favor 
of fugitive slaves, 184^185 ; secured 
by State consts., 251. 

Hale, J. B., nominated as Brest, by 
Free Soil party, 186. 

Hamilton, A., 135, 156-157: on Elector- 
al College, 68-69; on U. S. jufliciarj', 
96-100; on authority of Sup. Ct. over 
State laws, 104-106; his plan of treat- 
ing debt, 153-155; on incorporation 
of Bank of U. S., 155; breach with 
Adams, 160; death, 160. 

Hancock, W. S., nominated as Brest, 



IN^DEX. 



217; loses elccMon by free-trade let- 
ter, 219. 

Harrison, W. II., dies shortly after his 
election to the presidency, 177. 

Hartford Convention, 162, 174. 

Hayes, R. B., contest for presidency, 
71-72, 211-216; adm. of, 216-220; ef- 
forts at civil service reform, 229. 

Head-money. See Emigration. 

Holy Alliance, Monroe doctrine op- 
posed to design of, 166. 

Homestead law, 115-116. 

House of Representatives, 28-33; elec- 
toral votes to be counted in presence 
of, 66 ; when it elects Prest., 66-67 ; 
power of impeaching, 82, 101 ; elects 
Prest., 159, 166-167; conflict with 
Senate in counting votes in 1876, 
213-214 ; question of giving Cabinet 
seats in, 247-249. 

Illinois, minority representation in, 

262-263. 
Immoral publications in the mails, 

138-139. 
Impairment. See Contracts. 
Impeachment, 73, 74-75, 81-82, 100-101, 

205. 
Implied powers of Congress, 48; of 

Prest., 83-84. 
Importation of slaves, 49-50. 
Imports, Treas. Dept. to prepare statis- 
tics of, 86; at close of Jackson's 

adm., 173. 
Impost duties of States limited, 56. See 

also Protective. 
Impressment of Am. seamen by the 

English, 161. 
Improvements. See Internal. 
Inability of Prest. and Vice-Prest., 79- 

81. 
Indians, 94; neither citizens nor aliens, 

1(19; reservations for, 115; treaties 

with, 153. 
Indictments in criminal cases, 118. 
Inflation of currency, 209-210. 
Injunction, U. S. courts can issue 

writs of, 132. 
Insolvency. See Bankruptcy. 
Insurance corporations, influence upon 

State legislation, 257. 
Insurrections, power of Congress to 

suppress, 45; natl. govt, to protect 

States from, 59. 
Interior Dept , 84, 93-94. 
Internal improvements, power of Con- 
gress to make, 48; Whig party on, 

174-175, 176; division of parlies on, 

in 1848, 181, 182. 
Internal revenue, collected in each 

State, 88; Commissioners of. 89; 

bonds of collectors, 91; its abolition 

in favor of protection, 238. See also 

SoUcitor. 



International law, power of Congress 
to punish offenses against, 45. 

Interpretation of the Const., right of 
States to, 24-25; of U. S. Sup. Ct. to, 
26, 61-62; why given to judges, 97- 
103; influence of parties on, 145-146. 

Inter-state commerce, vii, 40-43, 224. 

Inter-state communication, 223. 

Invasions, power of Congress to repel, 
45; natl. govt, to protect States 
from, 59. 

Ironclad oath, 63-64. 

Irredeemable currency, 209-210. 

Jackson, A., battle of New Orleans, 
162-163; adm. of, 168-173; mode of 
appointments, 227. 

Jealousy of the States, 2.3-24, 69, 147. 

Jeflierson, T., opposition to Const, met 
by amends., 152; on incorporation of 
Bank of U. S., 155; advocates State 
rights, 156; retires from Washing- 
ton's cabinet, 156-157; elected Vice- 
Prest., 157; adm. of, 159-161. 

Johns<in, A., coercion and impeach- 
ment by Congress, 35, 82; adm. of, 
200-205. 

Johnson, H. V., nominated as Vice- 
Prest. by northern Democrats, 193. 

Johnston, J. E., surrender of, 199. 

Judges of U. S. courts appointed by 
Prest., 74. (Sse afeo State judges. 

Judgments of one State biuding in 
others, 59; of courts of last resort 
final, 121-122. See also Supreme 
Court. 

Judicial power of U. S., 21, 35, 44, 96- 
144, 149. See also Courts; State 
judges. 

Judicial proceedings, States to give 
credit to those of one another, 18, 
57-59. 

Judicial ofBcers, oath to support 
Const., 63-64. 

Judiciary act, 106, 126-1.33. 

Julian, G. W., nominated as Vice- 
Prest. by Free Soil party, 186. 

Jurisdiction of Congress over land 
purchased by govt., 46-47; of U. S. 
courts, 102-109. /Sse «&o Appellate; 
Original. 

Jury trials, in colonies, 5; secured by 
Const, amend., 20-21; obligatory 
only in criminal cases, 110-112; de- 
fined, 122; secured by State consts., 
251. See also Grand jury. 

Justice, Dept. of, 84, 89-92. 

Kansas, its formation into a territory, 
186-187; its admission as a State, 187- 
189, 191-192, 196. 

Kentucky, nullification of Allen and 
Sedition laws, 49; hesitates about 



ITTDEX, 



secession, 194; remains in tlie Union, 

197. 
King, W. R., elected Vice-Prest., 186. 
Know-Nothings, 188, 193. 
Knox, H. , favors incorporation of Bank 

of U. S., 155. 

Land Office, 94. 

Lands, speculation in, causes panic of 
1837, 175-176. See aluo Bounty lands; 
Public lands. 

Lane, J., nominated as Vice-Prest. by 
Southern Democrats, 193. 

Law Dept. See Attorney-General ; Jus- 
tice, Dept. of. 

Law of nations. See International law. 

Laws, Continental Congress without 
powers to enforce, 11-12; for carry- 
ing Const, into effect, 48; under the 
Const, the supreme law, 61-63; Prest. 
entrusted with execution of, 74; to 
be promulgated by Sec. of State, 
85; Sup. Ct. to determine their con- 
stitutionality, 125. See also Constitu- 
tional; Legislation; Muncipal. 

Leavenworth Constitution, 187. 

Lecompton Constitution, 191. 

Lee, R. B., surrender ol', 199. 

Legal tender, States prohiljited from 
making anything but gold and silver 
a legal tender, 53. See also Paper 
money ; Silver. 

Le^al tender act, 35; its constitution- 
ality, 143; its passage a war measure, 
198. 

Legislation in U. S., its defective 
methods, viii. See also Congress; 
General laws; Laws; Local bills; 
Special legislation. 

Legislative jDept. of U. S., 27-64. See 
also Congress. 

Legislatures. See State legislatures. 

Letters of marque and reprisal, power 
of Congress to grant, 45; States pro- 
hibited from granting, 53. 

Libel, 111-112, 136-137, 138. 

Liberal Republican party, 208. 

Liberty. iSee Pert^onal liberty. 

Liberty party. &(; Abolitionist. 

License laws, 57-58. 

Lieutenant- Governors of States, 253. 

Lighting streets, 269. 

Limited constitution defined, 96-97. 
See also Strict. 

Lincoln, A., forged proclamation, 139- 
140; elected Prest., 193; adm. of, 
196-200; assassination of, 200. 

Loan Assoc, vs. Topeka, 38. 

Lobby, its influence upon State legis- 
lation, 257. 

Local bills prohibited in many States, 
2.58-960. See also Special legisla- 
tion 

Local govt, in States, 253. 



Loose constructionists of Const., 174 

215-216. 
Louisiana, purchase of, 115, 116, 161; 

secedes, 194 ; electoral vote in 1876, 

212, 213, 214. 

Madison, J., quoted, 149-150; proposes 
Con-st. amends.. 151-152; on incor- 
poration of Bank of U. S., 155; lead- 
er of Republican party, 157; adm. 
of, 161-163. 

Mail. See Post. 

Maine, admission of, 164. 

Mandamus, power ol Sup. Ct. to issue 
writ of, 126. 

Manufacture>', statistics of, 88; their 
influence in forming Whig party, 
175. 

Maritime. See Admiralty. 

Maryland, form of colonial govt. , 3: 
withholds ratification to Arts, of 
Confed., 9; secedes, 197. 

Masonic. See Anti-Masonic. 

Massachusetts, form of colonial govt., 
3; prohibited enforcement of fugi- 
tive Slave law, 185; qualifications for 
citizenship, 254. 

Mayors of cities, should have power 
oi removal, 272; should have greater 
power, 274. 

Measures. See Weights. 

Meeting of Congress, 36. 

Members of Congress. See Congress- 
men. 

Messages of the Prest., 74; Jefferson's 
change in mfethod, 160-161. 

Mexican War, 179-180. 

Mexico, purchases from, 115, 116; set- 
tling eastern boundary of, 164. 

Migration of slaves, 49-50. 

Milan-Berlin decrees, 161. 

Military districts. Southern States 
formed into, 203-204. See also 
Army. 

Militia, recognition in Const, amend., 
19; power of Congress over, 45; 
mode of requisition for, 46; Prest. 
commander-in-chief when in ser- 
vice, 73; right of States to, 140-141; 
provisions in State consts., 253. 

Milligan case, 140. 

Mines, in charge of Interior Dept., 94; 
claims in, 115. 

Mining, development of, 217, 237. 

Ministers. /Set' Ambassadors. 

Minority representation, 233-235, 262- 
263, 271. 

Mint, Bureau of, 89. 

Misdemeanors, indictments not essen- 
tial, lis. 

Mississippi secedes, 194. 

Missouri, pro-slavery migration from, 
to Kansas, 186-187; hesitates about 
secession, 194 ; remains in the Un- 



INDEX. 



ion, 197; proposal to free slaves in, 
197; special legislation limited, 
258; minority representation in, 262. 

Missouri Compromise, IGt, 1()5 ; reop- 
ened, 182-18:3; repealed, 187. 

Mis-trials, 118. 

Money, power of Congress to regulate 
value of, 42-43; to be paid only on 
appropriations, 51. See also Bi-met- 
alism; Coinage; Currency; Legal 
tender; Paper money; Silver; Specie 
payments. 

Monopolies, power of Congress over, 
41-43, 225.' 

Monroe, J., adm. of, 163-166. 

Monroe doctrine, 165-166. 

Morey letter, 219. 

Mormons, their organization at Kirt- 
land and in Mo., 170. 

Miinicip.il government, 256-257, 260- 
274; evils, v-vi, viii; cannot be taxed 
by Congress, 39-40; power of States 
over, 5f-55; created by State consts., 
253. iS(?« (7&c> Debts of cities. 

Municipal law, use of States for, 223. 



National banks, power of Congress to 
charter, 48; act, 198; the system, 244- 
246. SeeafooBankof U.S.; Fiscal 
Bank. 

National debt. 8e£ Debt of U. S. 

National government, its supreme 
power, 16, 61-62 ; cannot be limited 
by States, 120; a party to actions, 
133-135; claims against, 133-135; pro- 
posed tliat it should pay for rescued 
slaves, 1'.I4; tendency to strengtlien, 
223-226; powers surrendered to it 
less than those reserved to States, 
250. See aim Executive Dept. 

National Republican party, 172; adopts 
name of Whig, 173. 

Natural resources of the U. S., vi-vii. 

Naturalization, mode of, 42. 

Naval Solicitor, 90. 

Navigation, laws, 150, 151, 235, 237-238; 
statistics, 88. 

Navy, power of Continental Congress 
over, 11 : of Congress over, 45; limi- 
tation or power'of States to main- 
tain, 56; its gallantry in War <.f 1812, 
162; a large navy not required by 
U. S., 232. 

Navy Dept., 84, 88, 90, 93. 

Ne exeat, U. S. courts can issue writs 
of, 133. 

Nebraska, its formation into a terri- 
tory, 184, 186-1S9, 191; admission as 
a State, 203,211. 

Negroes. See Freedmen ; Slaves. 

Nevada, organization into a territory, 
196; admission as a State, 199; min- 
ing regions, 217. 



New England, form of colonial govt., 
2; opposition to War of, 812, 162. 

New liampshire, form of colonial 
govt., 3; adopts State const., 8. 

New Jersey, form of colonial govt., 3; 
municipal govt, in, 273. 

New Mexico, cession to U. S., 180; its 
formation into a territory, 1&4. 

New Orleans, battle of, 162. 

New York State, form of colonial 
govt., 3: adopts State const., 8; emi- 
gration tax, 56-57; determines elec- 
tion of 1880, 217; introduces voting 
by ballot, 253-254; election of judges, 
2.54-56; special legislation limited, 
258-259 ; railway questions, 264. 

New York city, ruled by bosses, 219; 
public aid to religious institutions, 
261 ; tax levy in, 268; defects of govt., 
273; public improvement laws, 273. 

Newspapers. See Freedom of the 
press. 

Nobility. See Titles. 

Nolle prosequi, power of Prest. to en- 
ter, 83. 

Nominations for Prest., their begin- 
ning, 69-70. See also caucus. 

Noi'th Carolina, form of colonial govt., 
3; withholds ratification to Const., 
14; hesitates about secession, 194 ; 
secedes, 197. 

Northeastern boundary settled, 178. 

Northern Pacific Railway, amount of 
land given to, 246. 

Northwest, development of, 316-317. 

Northwest boundary settled, 181. 

Northwest Territory, passage of act 
for its govt., 152. 

Nullification, attempt by S. C, 25, 
170, 171-173; advocated by Hartford 
Convention, 174. 

Number of Congressmen, 28-31; of 
Senators, 33; of presl. electors, 65, 
71; of electoral vetes for Prest. in 
1876, 211. 

Oaths of office, 63-64; of Congress- 
men, 32; of Senators, 34. 

Office-holders prohibited from receiv- 
ing foreign gifts, titles, etc.. 52 ; can- 
not be presl. electors. 65; increase 
in number caused by Civil War, 227. 
See also Appointing; Civil service; 
State officers. 

Official household, a'^cs Cabinet. 

Orders in council, British, 161. 

Oregon, its disputed electoral vote ia 
1876, 212, 214. 

Oregon question settled, 181. 

Organization of House of Rep., 32; of 
Senate, 34; of Congress, 35-36. 

Original jurisdiction of Sup. Ct., 103- 
104, 108, 12.5-120. 

Overriding vetoes of Johnson, 202,203 . 



INDEX. 



Pacific coast and Chinese question, 
239-241. 

Pacific railways, only ones chartered 
by natl. govt., 225 ; grants of land 
to, 246. 

Panama Congress proposed, 167. 

Panic of 1837, 172, 176 ; of 1873, 210. 

Paper money, amount and redemption 
of Continental, 154 ; its excessive 
issue causes panic of 1837, 175-176 ; 
attempt to increase amount of irre- 
deemable, 209-210 ; causes fictitious 
prosperity, 236 ; uniform character 
and value under natl. banliiiig sys- 
tem, 244-245; basis, 246. See also 
Currency ; Greenback party ; Legal 
tender. 

Pardoning power of Prest., 73. 

Parker, I., proposed duty on importa- 
tion of slaves, 151. 

Parliament, denial of its power over 
colonies, 5. 

Parties, their lack of principle, viii ; 
nominationa for Prest. by, 69-70; 
their influence in interpreting 
Const., 145-146; need of, 156; be- 
come more clearly defined, 157-158; 
in Jackson's adm., 172; originated 
in construing Const., 173-175 ; 
division in 1860 on slavery question, 
192 ; their present demoralization, 
220-221; demoralized by spoils sys- 
tem, 231 ; how to improve them, 231- 
235; their responsibility in special 
legislation, 259. See also Abolition- 
ist; Anti-Federalists; Anti-Masonic; 
Democratic ; Democratie-Republi- 
can ; Federalist ; Free Soil ; Green- 
back ; Know-Nothings ; Liberal Re- 
publican ; National Democratic ; 
National Republican ; Republican ; 
Whig. 

Patent Offtce, 94. 

Patents, power of Congress over, 43- 
44 ; for land grants, 115, 116. 

Pauper element, its influence in cities, 
271. 

Paving streets, 269. 

Peace Congress of 1861, 195, 

Penal law, use of States for, 223. 

Pendleton, G. H., his civil service re- 
form bill, 230. 

Pennsylvania, form of colonial govt., 
3 ; special legislation limited in, 258; 
minority representation in, 262 ; mu- 
nicipal govt, in, 273. 

Pension Ofiice, 94. 

People, their ability to remedy evils, 
viii ; rights reserved to, 15, 135-144 ; 
rights secured by Const, amends., 
19-21 ; rights protected more by 
States than by natl. govt., 250. 

Personal liberty, right of colonists to, 
3; secured by Const, amend., 20; 



how protected, 119, 121; protected 
more by States than by natl. govt., 
250. 

Personal rights guarded by amend- 
ments. 117. 

Petitioning, right of, 19, 140, 251. 

Philadelphia as site of capital, 152, 
155. 

Pierce, F., adm. of, 186-190. 

Piracy, trials for, under Arts, of 
Confed., 10. 

Place of meeting of Congress, 32-33; of 
trial, 120, 132. 

Piatt, T. C, resignation of, 77. 

Police powers of States cannot be con- 
tracted away, 55-56. 

Political assessments, 78, 228, 230. 

Political hist. otU. S., 145-221. 

Political institutions of U. S., interest 
in, iv ; strain upon, caused by Civil 
War, iv-vi; their influence upon its 
prosperity, vi-vii. 

Politicians, character of, 232-233. 

Polk, J. K., adm. of, 179-181. 

Population of U. S., increase up to 
Monroe's adm., 163; size in 1848, 
182; its increase in cities. 270. 

Post-const, hist, of U. S., 145-221, 

Post-Oflice Dept., 84, 92-93 ; refusal to 
carry immoral publications, 138-139. 

Postal powers under Arts, of Confed., 
11 ; of Congress, 43. 

Postmaster-General, 84; his duties, 
92-93. 

Potomac, as a site for the capital, 152, 
155. 

Preamble to the Const., 135 ; text, 
288. 

Presents. See Gifts, 

President of the Senate, 84 ; to open 
electoral certificates, 66, 213-214 ; as 
acting Prest., 79-80. 

President of U. S. , commander-in-chief 
of army and navy, 45-46 ; his mode 
of requisition for militia, 46 ; mode 
of election, 65-72; term, 65, 72-73, 
78-79; duties, 73-78, 81, 83-84; re- 
election, 79 , vacancy, etc., 79-81; not 
subject to judicial interference, 79 ; 
impeachment, 81-82; power of creat- 
ing vacancies, 82; his implied powers, 
83-84 ; power of appointment, 83, 89, 
90, 92, 93, 94, 126, 151 ; can require 
opinion of Attorney-General, 90; his 
order not a process of law, 119 ; in- 
fluence of Washington in limiting 
term, 147-148; reeligibility, 152; 
change in mode of election, 160, 167, 
169-170 ; amnesty power taken from, 
203 ; power over army curtailed, 203. 

President's ofiicial household, 73. 

Presidents : Washington, 147-1,57 ; 
Adams, 157-159 ; Jefferson, 159-161 ; 
Madison, 161-163 ; Monroe, 163-166; 



INDEX. 



J. Q. Adams, 16&-168 ; Jackson, 168 
175; Van Buren, 175-176 ; Harrison 
177 ; Tyler, 177-179 ; Polk, 179-181 
Taylor, 182 ; Fillmore, 183-186 
Pierce, 186-190; Buchanan, 190-196 
Lincoln, 190-300 ; Johnson, 300-305 
Grant, 205-316; Hayes, 216-230 
Garfield, 217 ; Arthur, 220. 

Press. See Freedom of the press. 

Prisoners' rights to witnesses and 
counsel secured by Const, amend.. 

Private bills. /S'ge Local bills ; Special 

legislation. 
Private property, protected by Const, 
amend., 20, 119-130; power of State 
to appropriate, 55 ; exemption from 
seizure without compensation, 251. 
Prizes rules of, under Arts, of Confed., 
10 ; power of Congress to regulate, 
45; jurisdiction of Sup. Ct. over, 
127. 
Procedure, forms of, 132. 
Proclamation, forged, of Lincoln, 139- 

140. See also Emancipation. 
Prohibition, power of Sup. Ct. to issue 

writ of, 126. 
Property qualification for citizenship, 
254; rights of women, 263. See also 
Private. 
Proprietary government in the colo- 
nies, 3. 
Protective duties, their constitution- 
ality, 37-39, 120; their consideration 
in Ist Congress, 149-150; first sec- 
tional dispute on, 166; advocated by 
Whigs, 175: division of parties on, in 
1848,181; their adoption, 196; advo- 
cated in Repub. platform of 1880, 
217-218 : Civil War a pretext for their 
adoption, 235-336; falsity of plea for 
their necessity, 238. See also Com- 
merce; Free trade; TarifE. 
Provincial government in colonies 3 
Provisional govts, of Southern States, 

201-202. 
Public aid to religious institutions, 

261-362. 
Public documents, 94. 
Public improvements, frequent change 

oflawsinN. Y.,27.3. 
PuT)]ic lands, 114-116, 153 ; ownership 
after formation of Union, 9-10; power 
of Congress over, 46-47, 60-61 ; pur- 
chasing, 90; grants to corporations, 
115,246-247. ,S#e afoo Land Oflice. 
Public works. Superintendents of. 

Publications, immoral, in the mails. 

138-139. 
Punishments, cruel, prohibited by 

Const, amend., 21, 122, 142. 

Qualifications for Congressmen and 



their electors, 28; for Senators, 33- 

34; Congress to judge, 36: forpresl. 

electors, 65 ; for Prest., 67-68 ; for 

citizenship in States, 254. 
Quartering soldiers in private houses. 

19-20, 141. 
Quorum of Congress, 36; necessary to 

elect Prest. or Vice-Prest., 67. 

Race discriminations prohibited by 

Const, amend., 22. 
Railways, power of Congress over, 40- 
42: power of States over, 5.3-54; 
grants of land to, 115, 246: inability 
of States to deal with, 224, 225-226 : 
influence upon State legislation, 257- 
260; municipal and county debts in 
aid of, 260-261 ; checks upon their 
increasingpower, 263-264. 
Randolph, E., opposes incorporation 

of Bank of U. S.. 155. 
Ratification of Articles of Confed., 19; 

of Const., 114. 
Ratio assessments, attempts to limit, 

272-273. 
Rebels. See Confederates; Southern 

States. 
Receipts of U. S. to be published quar- 

teriy, 88-89. 
Reconstruction of Southern States. 

200-202; 205-207. 
Reelection of Prest., 79. 
Register of American ships, 237. 
Religion, Const, amend, regarding, 19; 
Congress cannot establish, 117; free- 
dom of, 135-136. 
Religious institutions, public aid to. 

261-262. 
Religious test for ofiices prohibited, ft3. 
Remonetization of silver, 217, 242-249. 
Removal of Prest. and Vice-Prest.. 

79-81. 
Removals from office, powers of Prest. 
in, 151: by Jackson, 168-169. See 
also Tenure-of-ofiice. 
Representation in U. S., faults of sys- 
tem, viii, 233-235; colonial struggle 
for, 4-6; by majorities secured by 
Const, amend., 22-23. See <ilso Mi- 
nority. 
Representatives. See Congressmen. 
Reprieve. /S'ce Pardoning. 
Reprisal, power of Congress to grant 
letters of, 45; Slates prohibited from. 
52. 
Republican form of govt, guaranteed 

to each State, 19, 59, 60. 
Republican-Democratic party, 162. 
Republican party (Old), 155-156, 157- 
158, 159, 160, 172. See also National 
Republican. 
Republican party (New), its formation, 
188; platform in 1860, 193; John- 
son's conflict with, 202, 203 ; its sue- 



INDEX. 



cess in 1868, 205; division in Grant's 
adm., 207-208 ; nominates Hayes as 
Prest., 211 : contest of 1876,214-216 ; 
elects Garfield Prest., 217 ; platform 
in 1880, 217-ai8 ; attacks free trade 
plank of Democrats, 218-219; its 
worK, mo ; its advocacy of civil 
service reform, 229. ii>ee also Lib- 
eral Republican. 

Requisition, of criminals, 18, 58 ; for 
militia, 46. 

Resignation of Prest. and Vice-Prest., 
71, 79-81. 

Resources. /Sfee Natural. 

Resumption of specie payments, 209- 
211, 217. 

Retroactive laws in civil matters per- 
missible, 51. 

Returning boards, 208-209, 212, 213. 

Revenue of U. S., its excess over the 
needs of the country, v-vi ; laws to 
originate in Ho. of Rep., Se-ST ; 
Treas. Dept. in charge of its collec- 
tion, 86-87 ; that from sale of lands, 
115 ; right of search in enforcing 
laws, 142 ; consideration in first Con- 
gress, 149 ; nullification in So. Caro- 
lina, 171-173. See also Custom ; Free 
trade ; Import ; Internal ; Protective ; 
Tariff ; Taxation. 

Revolution, govt, during, 6-7. 

Rhode Island, form of colonial govt., 
3 ; withholds ratification to Const., 
14. 

Rights reserved to the people, 15, 135- 
144 ; protected in State consts., 251. 

Rights reserved to States, 15, 21, 116- 
117, 143-144, 250. 

Rocky Mts., discovery of silver in, 241. 

Roll of Congressmen, made up by 
Clerk, 32. 

Rotation in office, 76-78. 

Rules for govt, of Congress, 36. 



Salaries of Congressmen and Senators, 
32 ; of judges, 44, 102 ; of Prest. and 
Vice-President, 73. 

Salaries of State oiRcers cannot be 
taxed by Congrej^s, 40 ; power of 
States over, 55. See also Compensa- 
tion. 

Sale of public lands, 60-61. 

Scott, W., sent to So. Carolina to en- 
force revenue collection, 171 ; com- 
mands troops in Mexican War, 179. 

Seal of State Dept., 85. 

Seal of U. S., in custody of State 
Dept., 85. 

Seamen, Treas. , Dept. to report to 
Congress amounts received f ro.m and 
expended for, 87-88 : their impress- 
ment into Englif^h navy, 161. 

Search warrants, 20, 118, 141-142. 



Secession of Southern States, 193-195i 

Secretaries. See Interior; Navy; State; 
Treasury; War. 

Sedition laws, 48-49, 141, 158-159. 

Seizure. See Search. 

Senate of U. S., 33-35 ; electoral votes 
to be counted in presence of, 66 ; 
when it elects Vice-Prest., 67 ; power 
of confirmation, 73-74, 76-78, 83,89 ; 
power of trying impeachments, 82, 
101 ; officers confirmed by, 83, 89, 90, 
92, 93, 94 ; concmTence in removals 
from office, 204 ; conflict with Ho. 
of Eep. in electoral contest of 1876, 
213-214. See also State senate. 

Senators, their salaries, 82 ; their 
qualifications, 34r-35 ; disqualified 
for other offices during term, 36 ; 
oath to support Const., 63-64 : can- 
not be presl. electors, 65. 

Sergeant-at-arms of House of Rep., 
32. 

Seymour, H., nominated as Prest., 
205. 

Sherman, W. T., 199. 

Shipping. See Navigation. 

Signers of Articles of Confederation, 
285-287 ; of Const., 301-302. 

Silver question, 217, 241-244. 

Slander. See Libel. 

Slave trade, permitted until 1808, 49- 
50 ; its consideration in 1st Congress, 
150-151. 

Slavery, abolished by Const, amend., 
22, 122-123 ; petitions for its aboli- 
tion, 158; beginning of struggle over, 
164 ; excited feeling regardnig, 167- 
168, 178-179 ; in platforms of 1848, 
181-182 ; its exteui^ion to new terri- 
tories, 183-189 ; division of parties 
as to extension, 188 ; Dred Scott de- 
cision, 190-191 ; proposed settlement 
by Crittenden compromise, 194 ; its 
abolition in State consts., 252. See 
ato Abolitionist; Fugitive. 

Slaves, escaped, to be delivered up by 
the States, 18-19; invalidity of 
claims for loss of, 123-124 ; emanci- 
pation, 197-198. See also Freedmen, 
Fugitive. 

Soldiers not to be quartered in private 
houses, 19-20, 141. 

Solicitor-General, 89 ; duties, 90. 

Solicitor, Naval, 90 ; of Internal Reve- 
nue, 90 ; of the Treas., 90, 91. 

South America, proposed conference 
with republics of, 167. 

South Carolina, form of colonial govt., 
3; adopts State const., 8 ; nullifica- 
tion, 25j 170, 171-172 ; opposition to 
protective duties, 168 ; secedes, 193- 
194 ; attacks Fort Sumter, 196 ; elec- 
toral vote in 1876, 212. 

Southern States, secession, 194 ; pro- 



INDEX. 



posed peace, 199 ; reconstraction, 
200-203, 205-207. See also Confede- 
rate. 

Sovereignty. See State. 

Spain, purchase of land from, 115, 116. 

Speaker of House of Representatives, 
32 ; as acting Prest., 79. 

Special legislation, 257-260, 264. See 
also Local bills. 

Specie paj'ments, resumption of, v, 
!)09-21 1,317. 

Speech. See Freedom. 

Spirits, duty on, 150. 

Spoils system, 7&-78, 169. 227-328, 230- 
231. See also Appointing ; Civil ser- 
vice. 

Squatter sovereignty, 182-183. 

Stamp act, cause of Continental Con- 
gress, 5. 

Standard silver dollars, 242. 

Standing army, how controlled by 
Congress, 46 ; not required by U. S., 
222. 

Stanton, E. H., attempt of Johnson to 
remove, 204-205. 

State banks, evils of system, 244. 

State conventions for amend, consti- 
tutions, 253. 

State courts, cases of concurrent juris- 
diction with U. S. courts, 109-110; in- 
dictments in, 118 ; appeals to Sup. 
Ct. from, 127-133 : writs of injunc- 
tion from U. S. courts to, 132. 

State Dept., 80, ft4-85. 

State engineers, 253. 

State executives, 252. 

State judges, 252 : bound by U. S. 
laws, 61-62 : their election, _:254-256: 
minority representation in their 
election in Penna., 362. 

State legislatures, 2.52 : power of colo- 
nial, 3 5 : oaths of members, 63-64 ; 
minority representation in their elec- 
tion in 111., 262 ; biennial sessiont^, 
264-366. 

State officers, power of State" over 
salaries, 55 ; subject to mandatory 
proceedings of Sup. Ct., 110; pro- 
viiSions lor appointment in State 
consts., 351-3.^)3. 

State prison inspectors, 253. 

State rights doctrine, 158, 173-175, 
21.5. 

State senates, 252. 

State sovereignty, 7, 15, 24-36. 

State surveyors, 353. 

States, powers of, imder Arts, of Con- 
fed., 10; their reserved rights, 15,31, 
118-117, 143-144, 250; their inde- 
stnietibility, 15-16: equal suffrage in 
the Senate, 17-18, 24, 33; admission 
of, 17, 19: to give credit to acts of 
one another, 18, 57-59: cannot be 
divided without their own consent, 



19; suits against, by citizens, 21, 
103, 110 ; apportionment of Congress- 
men, 31 ; cannot levy same taxes as 
natl. govt., 39; cannot bo taxed by 
Congress, 39-40 : power of Congress 
to organize govts, after Civil War, 
48; privileges prohibited, bi-ST, 62- 
63; their riglit of eminent domain, 
55; cannot limit power of natl. govt, 
over public lands, CO-61; their laws 
subordinate to those of U. S., 61-63; 
prevention of jealousy in choosing 
Prest., 69; power of Prest. to recog- 
nize their govts., 83; parties to ac- 
tions, 103. 105, 109, 126, 131-132; con- 
stitutionality of their actions judged 
by Sup. Ct., 104-106; cannot modify 
jurisdiction of U. S. courts, 108-109; 
sutfrage in, 113, 124; their control 
over citizens, 114; lands given to, 
for oduc. purposes, 115; can pass 
seizure laws, 118 ; cannot modify 
power of natl. govt., 120: their penal 
code cannot be modified by U. S., 
132- Sup. Ct. to determine constitu- 
tionality of their acts, 127-132; their 
laws and procedure binding on U. 
S. courts, 1:32; rights to militia, 
140-141; their jealousy, 147; debts on 
adoption of Const., 154; their as- 
sumption by natl. govt., 155; need of 
a party to assert their rights, 156; 
their increase in number, 163; weak- 
ening of their power, 223-225, 226. 
See alfo Constitutions. 

Statistics, Bureau of, 88. 

Stephens, A. H., elected Vice-Prest. 
of Confederate govt., 185. 

Story, J., quoted, 12, 136, 137. 

Streets, laying out and paving, 269. 

Strict construction of Const., 174, 215- 
216. See a'so Limited. 

Suffrage, 124: right of States to limit, 
113; its extension to frecdmen, 200- 
2a3, 305; secured by State consts., 
251 : need for its limitation in cities, 
270. See also Ballot. 

Sumner, C, assault upon him by 
Brooks, 189. 

Sumter, Fort, surrender of, 196. 

Supreme Court, 102-106; decisions, 16, 
38, .39-40, 41-43. 4:5, 48, 50, 51, 52-55, 
56-57, 60, 63, 109, 111-112, 140, 190, 
198, 234; influence of parties on, 145 
-146; interpreter of the Const., 26, 
62: coerced by Congress, 35: judges 
appointed by"Prest.,74: no authority 
over Prest., 61; how it has inter- 
preted Const., 125; its jurisdiction, 
125-133: in control of Southern 
States. 192. 

Surveyors. See State. 

Susquehanna, as a site for the capital, 
153. 



INDEX. 



Tallmadge, J., proviso on admission of 
Missouri, 164. 

Tariff, its evils not caused by Civil 
War, v-vi; under Articles of Con- 
fed.. 10; itp consideration in Con- 
gress, 149-150, 166, 168: modified to 
avoid trouble with So. Carolina, 171- 
172; the question in Polk's {ulm., 
180; its future treatment, 235-239. 
See also Free trade; Protective; 
Revenue. 

Taxation, without representation in 
colonies, 4-5 ; Continental Congress 
without power of, 11; power of 
Congress over, 37-40; proportion- 
al to population if direct, 51; 
State can waive power of, 53 ; power 
of States over, 117; cannot be 
exercised to aid private enter- 
prises, 120; at present on a war 
footing, 235; made uniform by State 
constitutions, 253; exemptions from, 
261-262. /See «&o Assessments; Cus- 
tom duties; Import; Internal; Rev- 
enue. 

Taxes, colonial levy and appropria- 
tion of in Virginia, 2. 

Taxing power of U. S., development 
of, 226-227. 

Taylor, Z., commands troops sent into 
Texas, 179; adm. of, 182. 

Tea, duty on, 150,238. 

Telegraphs, povv-er of Congress over, 
40-42; inability of States to deal 
with, 224. 

Tennessee, hesitates about secession, 
194; secedes, 197. 

Tenure-of -office act, 82, 204. 

Terms of Congressmen, 28; of Sena- 
tors, 33: of Judges, 44, 102; of Prest. 
and Vice-Prest., 65, 72-t3, 78-79; in- 
fluence of Washington in limiting, 
147-148; of State legislators, 252; of 
State governors, 252. 

Territories, have no reserved rights, 
16-17: power of Congress over, 60; 
slavery question in, 182-183, 193. 

Texas, acquisition of, 115: transferred 
to Spain, 164-165: its annexation, 
178, 180; amount paid for surrender 
of its claims to New Mexico, 184; se- 
cedes, 194. 

Texas vs. W^hite cited, 16. 

Text of Articles of Confederation, 
27.5-287: of Const., 288-308. 

Third terms, 79. 

Thomas, G. H., appointed Sec. of War, 
205. 

Tilden, S. J., dispute as to presidency, 
71-72, 211-216. 

Times of Congressional elections, 31 ; 
of electing Senators, 33; of meeting 
of Congress, 36; of electing Prest. 
and Vice-Prest., 65, 70-71. 



Titles of nobility cannot be granted 
by the U. S. or by States, 52; office- 
holders cannot receive them from 
foreign govts., 52. 

Tonnage duty, 56, 150. 

Topeka Constitution, 189. 

Trade-dollar, 242. 

Trade-marks, power of Congress over, 
43-44. 

Transportation questions, inability of 
States to deal with, 224-225. 

Treason, punishable by Congress, 47; 
imp( achment for, 75; defined, 112. 
See also Attainder. 

Treasury Dept., 51,84; its duties, 85- 
89, 93: deposit system adopted, 176. 
See also Solicitor. 

Treasury, Sec. of, desirability of his 
having a seat in Congress, 248. 

Treaties, the supreme law of the land, 
61-62; postal, 92; jurisdiction of 
Sup. Ct. in cases under, 102, 106, 
127-128. 

Treaty-power, of Continental Con- 
gress, 10; Cont. Congress could not 
enforce, 13; share or Senate in, 34- 
35; of Congress, 40; prohibited to 
States, 52; of Prest., 73. 

Trials. See Jury ; Mis-trials. 

Tyler, J., adm. of, 177-179. 

Union between the States indissoluble, 

17, 24-26, 63. 
United States, adoption of name, 10. 

See also National government. 
United States Bank. See Bank; 

Fiscal. 
Upper California, cession to U. S., 

180. 
Utah, its formation as a territory, 184; 

mining regions of, 217. 

Vacancies in office of Congressmen, 31 ; 
in office of Senators, 33, 34: in office 
of Prest. and Vice-Prest., 71; to be 
filled by Prest., 74; power of Prest. 
to create, 82. 

Van Buren, M., elected Vice-Prest., 
168; nominated as Prest. by Dem- 
ocrats, 172; adm. of, 175-176: nomi- 
nated as Prest. by Free Soil party, 
181-182. 

Vessels, clearance of, 51. 

Veto power of Prest., 75. 

Vetoes of Johnson, overriding, 202, 
203. 

Vice-President, as President of the 
Senate, 34: term, 65, 72-73; mode of 
election, 65-72; as acting Prest., 79- 
81; change in mode of election, 
160. 

Vice-Presidents: Adams, 151; Jeffer- 
son, 157; Burr, 159; Clinton, 161; 
Calhoun, 167, 168; Van Buren, 168; 



INDEX. 



Tyler, 17"; Dallas, 179: Fillmore, 
182; King, 186: Breckenridge, 190; 
Johnson, 205; Colfax, 205; Wilson, 
208; Wheeler, 216; Arthur. 220. 

Virginia, colonial levy and appropria- 
tion of taxe.<, 2: form of colonial 
govt., .3; adopts State const., 8; res- 
olutions or 1829, 25; nullification in, 
49; calls Peace Congress in 1861, 
195; secedes, 196-197. 

Volunteer army, its peaceable dis- 
bandment, v. 

Voting. See Ballot ; Suffrage. 

WarDept.,84, 88, 90,93. 

War of 1812, 162-163. 

War-powers, 139-140; of Continentil 

Congress, 10; of natl. govt., 43; share 

of Senate in, 35, 45; of States, 56; 

over private property, 119. 
Warrants on U. S. Treasury to be 

signed by Sec. of Treas., 86. See 

also Search. 
Washington, G., on Continental Con- 



gress, 12; opposed to third term, 79; 
adm. of, 147-157. 

Water supply in cities, 269. 

Webster, D.,163, 178. 

Weights and measures, power of Con- 
gress to fix standard of, 43. 

West Virginia, admission as a State, 
198-199. 

Wheeler, W. A., elected Vice-Prest., 
214, 216. 

Whig partj', its first appearance, 173; 
cause of its formation, 174-175; 
gains strength, 176; succeeds in 
1840. 176; and in 1844, 177; platfonn 
in 1848, 181 ; in 1852, 185-186. 

Wilmot proviso, 180. 

Wilson, H., elected Vice-Prest., 208. 

Witnesses in criminal trials, 21, 130. 

Woman's suflragej 60, 114, 263. 

Written constitutions vs. imwritten, 
1-2. 

Writs. See Habeas corpus; Injunction; 
Mandamus ; Ne exeat; Prohibition. 

Wyoming, mining regions of, 217. 



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